Representations and Warranties of the Company and the Trust. Each of the Company and the Trust jointly and severally represents and warrants to and agrees with each of the Co-Dealer Managers that: (a) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Securities Act, will comply when so filed, in all material respects, as to form with the Securities Act and the Exchange Act; the Registration Statement at the time it becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; each part of the Registration Statement when such part becomes effective will not contain, and each such part, as amended, if applicable, will not contain, any 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 as of the Commencement Date and the Exchange Date, none of the Prospectus or the other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 5(a) do not apply (A) to statements or omissions made based upon and in conformity with information supplied in writing by a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trust. (c) The Preferred Securities to be issued pursuant to the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation to the extent then a subsidiary of the Company (collectively, the "Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and the shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by the Company and the Trust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained under the Securities Act, the Exchange Act or the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection with the Exchange Offer. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) Neither the Company nor the Trust is, or after giving effect to the consummation of the Exchange Offer, will be, and neither the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (n) Each of the Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, independent certified public accountants as required by the Securities Act.

Appears in 1 contract

Samples: Dealer Manager Agreement (Ford Motor Co Capital Trust I)

Representations and Warranties of the Company and the Trust. Each of the ~~Company~~ Trust and the ~~Trust~~ Company jointly and severally represents and warrants to to, and agrees ~~with each of~~ with, the ~~Co-Dealer Managers~~ several Underwriters that: (a) ~~Each preliminary prospectus~~ A registration statement (No. 333-87427) relating to the Offered Securities and the shares of Company common stock ("UNDERLYING SHARES") into which the Offered Securities are convertible, including a form of prospectus, has been filed ~~as part~~ with the Securities and Exchange Commission ("COMMISSION") and either (i) has been declared effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement ("INITIAL REGISTRATION STATEMENT") has been declared effective, either (i) an additional registration statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the ~~Registration Statement as originally~~ Offered Securities and the Underlying Securities into which the Offered Securities are convertible may have been filed ~~or as part of any amendment thereto, or filed~~ with the Commission pursuant to Rule ~~424 of~~ 462(b) ("RULE 462(b)") under the ~~Securities Act~~Act and, ~~will comply when~~ if so filed, ~~in all material respects, as~~ has become effective upon filing pursuant to ~~form with the Securities Act~~ such Rule and the ~~Exchange Act;~~ Offered Securities and such Underlying Shares all have been duly registered under the Registration Statement at the time it becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities Act pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; each part of the Registration Statement when such part becomes effective will not contain, and each such part, as amendedinitial registration statement and, if applicable, ~~will not contain, any untrue~~ the additional registration statement ~~of a material fact~~ or ~~omit to state a material fact required~~ (ii) such an additional registration statement is proposed to be ~~stated therein~~ filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities and such Underlying Shares will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or ~~necessary to make the statements therein not misleading; and as of the Commencement Date~~ if an additional registration statement has been filed and the ~~Exchange Date~~Company does not propose to amend it, ~~none~~ and if any post-effective amendment to either such registration statement has been filed with the Commission prior to the execution and delivery of this Agreement, the Prospectus or the other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 5(a) do not apply most recent amendment (Aif any) to ~~statements~~ each such registration statement has been declared effective by the Commission or ~~omissions made based~~ has become effective upon and in conformity with information supplied in writing by a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements filing pursuant to ~~any of the foregoing or~~ Rule 462(c) (~~B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the~~ "~~Forms T-1~~RULE 462(c)") under the ~~Trust Indenture~~ Act or, in the case of the ~~trustee (~~additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the ~~"Indenture Trustee") under~~ initial registration statement or, if filed prior to the ~~Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein)~~ execution and ~~as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under~~ delivery of this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trust. (c) The Preferred Securities to be issued pursuant to the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. additional registration statement means (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation to the extent then a subsidiary of the Company (collectively, the "Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and the shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by if the Company and the Trust ofhave advised the Representatives that they do not propose to amend such registration statement, the date and time as of which such registration statement, or the ~~performance~~ most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (ii) if the Company or the Trust have advised the Representatives that they propose to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by such amendment or post-effective amendment, as the case may be, is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company and the Trust ~~of their obligations under~~have advised the Representatives that they propose to file one, ~~this Agreement,~~ "EFFECTIVE TIME" with respect to such additional registration statement means the ~~execution~~ date and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered time as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which ~~would materially affect, the performance by the Company~~ such registration statement is filed and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained under the Securities Act, the Exchange Act or the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection with the Exchange Offer. (l) There are no legal or governmental proceedings pending becomes effective pursuant to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) Neither the Company nor the Trust is, or after giving effect to the consummation of the Exchange Offer, will be, and neither the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (n) Each of the Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of FloridaRule 462(b). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, independent certified public accountants as required by the Securities Act.

Appears in 1 contract

Samples: Underwriting Agreement (Calpine Capital Trust)

Representations and Warranties of the Company and the Trust. Each of the Company and the Trust ~~jointly and severally~~ hereby represents and ~~warrants~~ warrants, as to itself, to, and agrees ~~with each of~~ with, the ~~Co-Dealer Managers~~ Underwriter that: (a) ~~Each preliminary~~ A registration statement on Form S-3 (No. 333-33823), as heretofore amended, relating to the Notes, including a form of prospectus, has been filed with the Securities and Exchange Commission (the "Commission") and has been declared effective under the Securities Act of 1933, as amended (the "1933 Act"), and is not proposed to be amended. The registration statement (including the prospectus constituting a part thereof) in the form in which it became effective under the 1933 Act, including the exhibits thereto, is hereinafter referred to as the "Registration Statement" and the prospectus dated January 19, 2000 in the form in which it was most recently filed with the Commission, and the prospectus supplement dated January 19, 2000 are together hereinafter referred to as ~~part of~~ the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the 1933 Act. (b) On the date the Registration Statement ~~as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of~~ became effective (the Securities Act, will comply when so filed, in all material respects, as to form with the Securities Act and the Exchange Act; the Registration Statement at the time it becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date "Effective Date") and on the date ~~on which~~ hereof, the ~~Company commences delivery~~ Registration Statement and the Prospectus comply in all respects with the requirements of the ~~Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities~~ 1933 Act and the ~~Exchange Act; each part~~ rules and regulations of the ~~Registration Statement when~~ Commission thereunder (the "Rules and Regulations") and neither of such ~~part becomes effective~~ documents includes, or will ~~not contain, and each such part, as amended, if applicable, will not contain~~include, any untrue statement of a material fact or ~~omit~~ omits, or will omit, to state a any material fact required to be stated therein or ~~necessary~~ necessary, to make the statements therein not misleading; provided, that no representation is made as to any numerical and ~~as of~~ statistical information therein relating to the ~~Commencement Date and~~ Notes, the ~~Exchange Date, none of the Prospectus~~ Certificates or the ~~other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement~~ Agency Securities, all of ~~a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under~~ which they were made, not misleading, except that the representations and warranties set forth in this Section 5(a) do not apply (A) to statements or omissions made based upon and in conformity with information was supplied in writing by a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the TrustUnderwriter. (c) The ~~Preferred Securities to be issued pursuant to~~ Company has been duly incorporated and is an existing corporation in good standing under the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms laws of the ~~Declaration~~State of Delaware, with power and authority (corporate and other) ~~fully paid~~ to own its properties and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained conduct its business as described in the Prospectus~~. Holders~~ ; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of ~~Preferred Securities will be entitled to~~ property or the ~~same limitation~~ conduct of ~~personal liability extended to stockholders of private corporations for profit~~its business requires such qualification. (d) The ~~Declaration~~ Trust has been duly formed and is validly existing in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as 3 3 described in the Prospectus; and the ~~Guarantee~~ Trust is duly qualified to do business in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification. (e) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by it for the consummation of the transactions contemplated by this Agreement and the Transaction Documents in connection with the issuance and sale of the Notes and the Certificates, except such as have been obtained and made under the 1933 Act, such as may be required under state securities laws and the filing of any financing statements required to perfect the Note Trustee's interest in the Issuer Assets, which financing statements will be filed in the appropriate offices within ten (10) days of the Closing Date. (f) It is not in violation of its organizational or formation documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a party or by which it or its properties are bound which could have a material adverse effect on the transactions contemplated herein or in the Transaction Documents. The execution, delivery and performance of this Agreement and the Transaction Documents, and the issuance and sale of the Notes and the Certificates and compliance with the terms and provisions hereof and thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over it or any of its properties, or any agreement or instrument to which it is a party or by which it is bound or to which any of its properties is subject, or its organizational or formation documents; it has full power and authority to enter into this Agreement and the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby; the Trust has full power and authority to authorize, issue and sell the Notes and the Certificates as contemplated by this Agreement, the Indenture and the Issuer Trust Agreement. (g) On the Closing Date, the Company will have directed (i) the Issuer Trustee to execute, and the Authenticating Agent to authenticate, the Notes and, when delivered and paid for pursuant to the Indenture, the Notes will have been duly ~~authorized by~~ executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the ~~Company~~ Trust, entitled to the benefits of the Indenture and enforceable in accordance with their terms and (ii) the Issuer Trustee to execute, and the Issuer Certificate Agent to authenticate, the Certificates and, ~~as of~~ when delivered and paid for pursuant to the ~~Exchange Date~~Issuer Trust Agreement, the Certificates will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Trust, entitled to the benefits provided in the Issuer Trust Agreement and enforceable in accordance with their terms. (h) It possesses adequate certificates, authorities and permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to it, would individually or in the aggregate have a material adverse effect on it. (i) Except as disclosed in the Prospectus, there are no pending actions, suits or proceedings against or affecting it or any of its properties that, if determined adversely to it, would individually 4 4 or in the aggregate have a material adverse effect on the condition (financial or other), business or results of operations of it, or would materially and adversely affect its ability to perform its obligations under this Agreement or the Transaction Documents to which it is a party, or which are otherwise material in the context of the issuance and sale of the Notes or the Certificates; and no such actions, suits or proceedings are threatened or, to its knowledge, contemplated. (j) As of the Closing Date, the representations and warranties made by it in the Transaction Documents to which it is a party will be true and correct. (k) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business and (ii) there have been no transactions entered into by the Company, other than those in the ordinary course of business, which are material with respect to the Company. (l) Each of the Transaction Documents to which it is a party will be duly authorized by it and, when duly executed and delivered by it and the ~~Company. Assuming due authorization~~other parties thereto, ~~execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a~~ will constitute its valid and binding ~~obligation of the Company and the Trustees,~~ agreement enforceable against ~~the Company and the Trustees~~ it in accordance with its terms, except as the ~~same~~ enforcement thereof may be limited by bankruptcy, insolvency, reorganization, ~~receivership,~~ moratorium or ~~other~~ similar laws ~~relating to or~~ affecting ~~the~~ enforcement of creditors' rights ~~generally, by~~ generally and except as enforcement thereof is subject to general ~~equitable~~ principles of equity (regardless of whether ~~such enforceability~~ enforcement is considered in a proceeding in equity or at law). (m) This Agreement has been duly authorized, ~~or considerations of public policy or~~ executed and delivered by it. (n) The Company has authorized the ~~effect of applicable law relating to fiduciary duties. As~~ conveyance of the ~~Exchange~~ Agency Securities to the Trust and, as of the Closing Date, the ~~Guarantee will be a valid~~ Company has directed the Trust to execute, issue and ~~binding obligation of~~ sell the ~~Company, enforceable against~~ Notes and the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at lawCertificates. (eo) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution Company's assignment and delivery of the Agency Securities to the Trust will vest in the Trust all of the Company's right, title and interest therein, subject to no prior lien, mortgage, security interest, pledge, adverse claim, charge or other encumbrance. (p) The Trust's assignment of the Pledged Assets to the Note Trustee pursuant to the Indenture will vest in the Note Trustee, for the benefit of the Noteholders, a security interest therein, which will be perfected upon the Note Trustee's taking possession of the certificated Agency Securities endorsed by the ~~Indenture~~ registered holder(s) thereof in blank or to the Note Trustee and upon ~~execution and delivery~~ the Note Trustee's being reflected by book-entry in the ~~Company, will be enforceable against the Company in accordance with its terms, except~~ Federal Reserve Bank's records as the ~~same may be limited by bankruptcy~~holder of the Series 2203 Fredxxx Xxx Security, ~~insolvency~~subject to no prior lien, ~~reorganization~~mortgage, ~~receivership~~security interest, ~~moratorium~~ pledge, adverse claim, charge or other ~~similar laws relating~~ encumbrance except for any tax lien, mechanics' lien or other lien or encumbrance that attaches by operation of law so long as the Note Trustee maintains physical possession of the certificated Agency Securities in the form described above, in the Commonwealth of Massachusetts, and so long as the Note Trustee continues to ~~or affecting~~ be a "securities intermediary" of the ~~enforcement~~ 5 5 Federal Reserve Bank and continues to be reflected in the records of ~~creditors' rights generally and by general equitable principles, regardless~~ the Federal Reserve Bank as the holder of ~~whether such enforceability is considered~~ the Series 2203 Fredxxx Xxx Security as described in ~~a proceeding in equity or at law~~Section 3.03 of the Indenture. (fq) ~~The Debentures to be deposited in the Trust as trust assets~~ Any taxes, fees and other governmental charges in connection with the ~~Exchange Offer~~ execution, delivery and performance of this Agreement, the Transaction Documents, the Notes and the Certificates and any other agreements contemplated herein or therein shall have been ~~duly authorized, and, assuming due authorization, execution and delivery of the Indenture~~ paid or will be paid by the ~~Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered~~ Company at or prior to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation Closing Date to the extent then a subsidiary of the Company (collectively, the "Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and the shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a wholedue. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by the Company and the Trust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained under the Securities Act, the Exchange Act or the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection with the Exchange Offer. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (mr) Neither the Company nor the Trust is, or and after giving effect to the ~~consummation~~ offering and sale of the ~~Exchange Offer~~Notes and the Certificates and the application of the proceeds thereof as described in the Prospectus, will not be required to be, ~~and neither the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is,~~ registered as an "investment ~~company within the meaning of~~ company" as defined in the Investment Company Act of 1940, as ~~amended.~~ amended (~~n) Each of~~ the "Investment Company ~~and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida~~Act"). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, independent certified public accountants as required by the Securities Act.

Appears in 1 contract

Samples: Underwriting Agreement (Fund America Investors Corp Ii)

Representations and Warranties of the Company and the Trust. ~~Each of the Company and the Trust~~ (A) The Offerors jointly and severally ~~represents~~ represent and ~~warrants~~ warrant to ~~and agrees with~~ each ~~of the Co-Dealer Managers~~ Underwriter that: (a) ~~Each preliminary prospectus filed as part~~ The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement ~~as originally filed~~ is in effect, and, to the best of each Offerors’ knowledge, no proceedings for such purpose are pending before or ~~as part of any amendment thereto, or filed pursuant to Rule 424~~ threatened by the Commission. No order preventing the use of the ~~Securities Act, will comply when so filed, in all material respects, as to form with~~ preliminary prospectus or any Issuer Free Writing Prospectus has been issued by the ~~Securities Act and~~ Commission. (i) At the ~~Exchange Act;~~ respective times the Registration Statement ~~at the time it~~ and any post-effective amendment thereto became or becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities pursuant prior to the ~~Exchange Offer (such date~~Closing Date, ~~the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; each part of~~ neither the Registration Statement ~~when~~ nor such ~~part becomes effective~~ amendment included or will ~~not contain, and each such part, as amended, if applicable, will not contain, any~~ include an untrue statement of a material fact or omitted or will omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, as of the ~~Commencement Date~~ date such amendment becomes effective or such supplement is filed with the Commission, as the case may be, will comply in all material respects with the Securities Act and the ~~Exchange Date~~Trust Indenture Act, ~~none~~ (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, as of the ~~Prospectus~~ date such amendment becomes effective or such supplement is filed with the ~~other Offering Materials or any amendments or supplements to such Offering Materials~~ Commission, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this ~~Section 5(a~~paragraph (b) do not apply ~~(A)~~ to statements or omissions ~~made~~ in the Registration Statement or the Prospectus based upon ~~and in conformity with~~ information ~~supplied~~ relating to any Underwriter furnished to the Offerors in writing by ~~a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated~~ such Underwriter expressly for use therein and (iv) the documents incorporated by reference in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trust. (c) The Preferred Securities to be issued Prospectus pursuant to ~~the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration~~ Item 12 of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation to the extent then a subsidiary of the Company (collectively, the "Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and the shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by the Company and the Trust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained Form S-3 under the Securities Act, at the ~~Exchange Act~~ time they were or ~~the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection~~ hereafter are filed with the Exchange Offer. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, Commission prior to the ~~best of~~ Closing Date, complied and will comply in all material respects with the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) Neither the Company nor the Trust is, or after giving effect to the consummation requirements of the Exchange ~~Offer~~Act, ~~will be~~and, when read together and ~~neither~~ with the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (n) Each of the Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference other information in ~~the Registration Statement and~~ the Prospectus, as ~~amended or supplemented, are,~~ of the date of the Prospectus and at all times subsequent thereto up to the ~~best knowledge~~ Closing Date, did not and will not contain an untrue statement of material fact or did not and will not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the ~~Company~~circumstances under which they were made, ~~independent certified public accountants as required by the Securities Act~~not misleading.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Financial Corp)

Representations and Warranties of the Company and the Trust. Each of the ~~Company~~ Trust and the ~~Trust~~ Company jointly and severally represents and warrants to to, and agrees ~~with each of~~ with, the ~~Co-Dealer Managers~~ several Underwriters that: (a) ~~Each preliminary~~ A registration statement (No. 333- ), including a form of prospectus, relating to debt securities, equity securities and guarantees of the Company, the Offered Securities, the Guarantees, and the debt securities of certain subsidiaries of the Company to be issued from time to time (the "REGISTERED SECURITIES") has been filed with the Securities and Exchange Commission (the "COMMISSION"), such registration statement, as it may have been amended prior to the date of this Agreement, has become and has been declared effective under the Securities Act of 1933 (the "SECURITIES ACT") on , 200-. Such registration statement, as amended at the time of this Agreement, is hereinafter referred to as the "REGISTRATION STATEMENT", and the prospectus included in such Registration Statement, as supplemented by a prospectus supplement to reflect the terms of the Offered Securities and terms of offering thereof, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Securities Act, including all material incorporated by reference therein, is hereinafter referred to as ~~part~~ the "PROSPECTUS". No document has been or will be prepared or distributed in reliance on Rule 434 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement ~~as originally filed~~ is in effect and no proceedings for such purpose are pending before or ~~as part~~ threatened by the Commission. (b) On the effective date of ~~any amendment thereto~~the Registration Statement relating to the Registered Securities, ~~or filed pursuant~~ such Registration Statement conformed in all respects to ~~Rule 424~~ the requirements of the Securities Act, ~~will comply when so filed, in all material respects, as to form with~~ the ~~Securities~~ Trust Indenture Act of 1939 ("TRUST INDENTURE ACT") and the ~~Exchange Act; the Registration Statement at the time it becomes effective~~ rules and ~~the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery~~ regulations of the ~~Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer~~ Commission (~~such date, the~~ "~~Exchange Date~~RULES AND REGULATIONS"~~), will comply, in all material respects, as to form with the Securities Act~~ ) and ~~the Exchange Act; each part of the Registration Statement when such part becomes effective will~~ did not ~~contain, and each such part, as amended, if applicable, will not contain,~~ include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; , and as on the date of this Agreement, the Registration Statement and Prospectus will conform in all respects to the requirements of the ~~Commencement Date~~ Securities Act, the Trust Indenture Act and the ~~Exchange Date~~Rules and Regulations, ~~none~~ and neither of ~~the Prospectus or the other Offering Materials or any amendments or supplements to~~ such ~~Offering Materials~~ documents will ~~contain~~ include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary ~~in order~~ to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not misleading, except that the ~~representations and warranties set forth in this Section 5(a) do~~ foregoing does not apply ~~(A)~~ to statements in or omissions ~~made~~ from any of such documents based upon ~~and in conformity with~~ written information ~~supplied in writing~~ furnished to the Company or the Trust by ~~a Co-Dealer Manager~~ any Underwriter through ~~Merrxxx Xxxch~~the Representative, ~~Pierce~~if any, ~~Fennxx & Xmitx Incorporated expressly~~ specifically for use therein, it being understood and agreed that the only such information is that described as such in ~~the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B~~Section 7(b) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trusthereof. (c) The ~~Preferred Securities~~ Trust has been duly created and is validly existing as a statutory business trust in good standing under the Delaware Business Trust Act (the "TRUST ACT") with the power and authority to ~~be issued pursuant~~ own property and conduct its business as described in the Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement and as described in the Prospectus; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, the ~~Exchange Offer will be duly authorized by the Trust's~~ Amended and Restated Declaration of Trust (the "~~Declaration~~DECLARATION") among the Company, Wilmington Trust Company, as Delaware Trustee (the "DELAWARE TRUSTEE"), Wilmington Trust Company, as Property Trustee (the "PROPERTY TRUSTEE"), the administrative trustees named therein (the "ADMINISTRATIVE TRUSTEES" and, ~~when issued in exchange for Target Securities pursuant~~ collectively with the Delaware Trustee and the Property Trustee, the "ISSUER TRUSTEES" and the holders, from time to ~~the Exchange Offer~~time, ~~will be validly issued and (subject to the terms~~ of the ~~Declaration~~Offered Securities and the Common Securities, the Remarketing Agree- ment (the "REMARKETING AGREEMENT") ~~fully paid and non-assessable undivided beneficial interests in~~ among the ~~assets of~~ Company, the Trust, Wilmington Trust Company, as Tender Agent, and , as Remarketing Agent, and the agreements and instruments contemplated by the Declaration, the Remarketing Agreement and the Prospectus; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement and the Declaration, the Remarketing Agreement and described in the Prospectus; and the Trust is not a party to or subject to any ~~preemptive~~ action, suit or ~~similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders~~ proceeding of ~~Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit~~any nature. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of the State of ~~Delaware and has corporate~~ Delaware, with power and authority (corporate and ~~has all licenses, permits, orders and other governmental and regulatory approvals,~~ other) to own ~~or lease~~ its properties and conduct its business ~~in the jurisdictions in which such business is transacted~~ as described in the Prospectus~~, with only such exceptions as are not material to the business of~~ ; and the Company ~~and its subsidiaries considered~~ is duly qualified to do business as a ~~whole~~foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification. (he) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation to the extent then a subsidiary Each Subsidiary of the Company (~~collectively, the "Principal Subsidiaries"),~~ x) other than those Subsidiaries specified in clause (y) of this subparagraph has been duly incorporated and is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of ~~its~~ the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; or (y) that is not a corporation is a limited partnership, a limited liability company or business trust, has been duly formed and is validly existing as a limited partnership, a limited liability company or a business trust, as the case may be, in good standing under the laws of the jurisdiction of its formation, and has full power and authority to own its properties and conduct its business as described in the Prospectus; each Subsidiary of the Company is duly qualified to do business as a foreign corporation, limited partnership, limited liability company or business trust, as the case may be, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where failure to so qualify would not have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its Subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT"); all of the issued ~~shares of~~ and outstanding capital stock of ~~FMCC and of~~ each Subsidiary of the ~~Principal Subsidiaries have~~ Company has been duly authorized and validly ~~authorized~~ issued and ~~issued, are~~ is fully paid and ~~non-assessable~~nonassessable; except as set forth on Schedule B hereto, ~~and~~ the ~~shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common~~ capital stock of ~~FMCC, are~~ each Subsidiary owned by the Company, directly or through Subsidiaries, is owned free from liens, encumbrances and defects; and the Company is not a general partner in any partnership. For purposes of this agreement, "SUBSIDIARY" means, as applied to any person, any corporation, limited or general partnership, trust, association or other business entity of which an aggregate of at least 50% of the outstanding Voting Shares or an equivalent controlling interest herein, of such person is, at any time, directly or indirectly, ~~free and clear~~ owned by such person and/or one or more subsidiaries of ~~any pledge~~such person, ~~lien, security interest, charge, claim, equity or encumbrance of any kind,~~ including with ~~only such exceptions as are not material~~ respect to the business of the Company and its subsidiaries considered as a whole. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by the Company and the Trust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained under the Securities Act, the Exchange Act or the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection with the Exchange Offer. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) Neither the Company nor the Trust is, or after giving effect to the consummation of the Exchange Offer, will be, and neither the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (n) Each of the Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, ~~independent certified public accountants as required~~ the Trust. For purposes of the definition of "SUBSIDIARY," "VOTING SHARES," means with respect to any corporation, the capital stock having the general voting power under ordinary circumstances to elect at least a majority of the board of directors (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the ~~Securities Act~~happening of any contingency).

Appears in 1 contract

Samples: Underwriting Agreement (Calpine Capital Trust Iv)

Representations and Warranties of the Company and the Trust. ~~Each~~ (a) The first, introductory phrase of Section 2 is supplemented by adding the ~~Company~~ phrase "as to itself and the ~~Trust jointly~~ Trust" before the final word of that phrase "that." (b) Section 2(a) is amended by deleting the phrase "A registration statement (No. 333-44321)" and ~~severally represents and warrants to and agrees~~ replacing it with ~~each~~ the phrase "The Registration Statement" (as defined in this Terms Agreement). (c) Section 2 is amended by adding the following as the final paragraphs of ~~the Co-Dealer Managers that~~that section: (ad) ~~Each preliminary prospectus filed as part~~ No stop order suspending the effectiveness of the Registration Statement ~~as originally filed~~ or ~~as part of~~ any post-effective amendment ~~thereto~~thereto has been issued and no proceeding for that purpose has been initiated or, to the Company's knowledge, threatened by the Commission; and no order preventing or ~~filed pursuant to Rule 424~~ suspending the use of the ~~Securities Act~~Preliminary Prospectus (as defined below) or the Prospectus has been issued by the Commission, ~~will comply when so filed~~and the Preliminary Prospectus and the Prospectus, at the time of filing thereof, conformed in all material ~~respects, as~~ respects to ~~form with~~ the requirements of the Securities Act and the ~~Exchange Act; the Registration Statement at the time it becomes effective~~ rules and ~~the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery~~ regulations of the Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; each part of the Registration Statement when such part becomes effective will not contain, and each such part, as amended, if applicable, will not contain, any 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 as of the Commencement Date and the Exchange Date, none of the Prospectus or the other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 5(a) do not apply (A) to statements or omissions made based upon and in conformity with information supplied in writing by a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trust. (c) The Preferred Securities to be issued pursuant to the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at lawCommission thereunder. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing as a statutory business trust in good standing ~~as a business trust~~ under the Business Trust Act of the State of Delaware (the "Delaware Trust Act~~, is and will be treated as a~~ "~~grantor trust" for federal income tax purposes under existing law, has~~ ) with the ~~business~~ trust power and authority ------------------ to own property and conduct its business ~~as presently conducted and~~ as described in the Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement as described in the Prospectus; the Trust is not ~~required~~ a party to or bound by any agreement or instrument and after the Trust executes the Declaration, the Trust will not be a party to or bound by any agreement or instrument other than this Agreement, the Remarketing Agreement, the Declaration and the other agreements entered into in connection with the transactions contemplated hereby; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement, the Remarketing Agreement and the Declaration and described in the Prospectus; and the Trust is not a party to or subject to any action, suit or proceeding of any nature. (f) Each of the Securities and the Transaction Agreements has been duly authorized by the Company and the Trust, as the case may be, and conforms to ~~do business~~ the description thereof contained in the Prospectus. (g) There are no preemptive or other rights to subscribe for or to purchase, nor is there any restriction on the voting or transfer of, any of the Securities pursuant to the Company's charter or by-laws or any agreement or instrument, except as such preemptive or other ~~jurisdiction~~rights and/or restrictions are expected with respect to the transactions contemplated by the Stock Purchase Agreement, the Pledge Agreement and the Declaration of Trust. (h) The Units, when duly executed by the Company (assuming due execution by the Purchase Contract Agent as attorney-in-fact for the holders thereof and due authentication by the Purchase Contract Agent) and delivered by the Company and upon payment therefor as set forth herein, will be duly and validly issued and outstanding, and will constitute valid and binding obligations of the Company entitled to the benefits of the Purchase Contract Agreement and enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (i) ~~Ford Motor Credit Company ("FMCC")~~The Subordinated Notes, when duly executed, authenticated, issued and delivered as contemplated by the Indenture against payment of the agreed consideration therefor, will be duly and validly issued and outstanding, and ~~each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation~~ will constitute valid and ~~Granite Management Corporation to the extent then a subsidiary~~ binding obligations of the Company ~~(collectively,~~ entitled to the ~~"Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under~~ benefits of the ~~laws of its jurisdiction of incorporation~~Indenture, and ~~all~~ enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (j) The Guarantee, when duly executed, authenticated, issued and delivered as contemplated by the ~~issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been~~ Guarantee Agreement, will be duly and validly ~~authorized~~ issued and outstanding, and will constitute a valid and binding obligation of the Company entitled to the benefits of the Guarantee Agreement, and enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (k) The Trust Securities, upon issuance and delivery and payment therefor in the manner described herein, will be validly issued, ~~are~~ fully paid and, in the case of the Preferred Securities, non-assessable and will conform to the descriptions contained in the Prospectus. (l) The unissued shares of Common Stock to be issued and sold by the Company upon settlement of the Purchase Contracts have been reserved for issuance and, when issued and delivered in accordance with the provisions of the Purchase Contracts, will be duly and validly issued, fully paid and non-assessable~~, and the shares of FMCC and~~ . (m) Each of the ~~Principal Subsidiaries owned~~ Transaction Agreements has been duly authorized by the Company and, when duly executed by the proper officers of the Company (assuming due execution and delivery by the respective other parties thereto) and delivered by the Company, ~~being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free~~ will constitute a valid and ~~clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business~~ binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and ~~its subsidiaries~~ other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered as in a ~~whole~~proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (jn) The ~~Company has an authorized capitalization as set forth in~~ Securities and the ~~Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and~~ Transaction Agreements will conform to the ~~respective~~ descriptions thereof contained in the Prospectus. (ko) The ~~execution~~ execution, delivery and ~~delivery by~~ performance of the ~~Company~~ Transaction Agreements, the issuance and sale or exchange, as the case may be, of the Securities and the ~~Trust of, and the performance~~ consummation by the Company and the Trust of ~~their obligations under, this Agreement~~the transactions contemplated hereby and thereby (collectively, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated "Transactions") will not (1) ------------ conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole)~~under, any indenture, mortgage, deed of trust, loan ~~agreement, guarantee, lease, financing~~ agreement or other ~~similar~~ agreement or instrument to which the ~~Company or~~ Company, any of its subsidiaries ~~(including~~ or the ~~Trust)~~ Trust is a party or by which the ~~Company or~~ Company, any of its subsidiaries ~~(including~~ or the ~~Trust)~~ Trust is bound or to which any of the ~~property~~ properties or assets of the ~~Company or~~ Company, any of its subsidiaries ~~(including~~ or the ~~Trust)~~ Trust is subject, ~~nor will such actions~~ which would cause a material adverse change in the financial position, shareholders' equity or results of operations of the Company, (2) result in any violation of the provisions of the ~~certificate of incorporation~~ charter or by-laws (or equivalent organizational documents) of the ~~Company~~ Company, any of its subsidiaries or the ~~declaration of trust of the Trust, nor will such actions~~ Trust or (3) result in any violation ~~(in each case material to the Company and its subsidiaries (including the Trust) considered as a whole)~~ of any statute or any order, rule or regulation of any court or ~~regulatory authority~~ governmental agency or ~~other governmental~~ body having jurisdiction over the ~~Trust or the Company or~~ Company, any of its ~~subsidiaries~~ subsidiaries, the Trust or any of their ~~properties;~~ respective properties or assets, which would cause a material adverse change in the financial position, shareholders' equity or results of operations of the Company, and no (4) require any material consent, ~~approval or~~ approval, authorization or order of, or ~~qualification~~ filing or registration with, any such court or governmental agency or body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and for the consummation of the ~~Exchange Offer~~Transactions or the issuance and sale or exchange of the Securities, as the case may be, except ~~such approvals as will be obtained~~ for (a) the registration under the Securities ~~Act~~Act of 1933, as amended, and the rules and regulations of the Commission thereunder, of the Units, the ~~Exchange Act or~~ Trust Preferred Securities, the Subordinated Notes, the Guarantees and the Common Stock to be issued and sold pursuant to the Purchase Contracts, (b) the qualification of the Indenture, the Guarantee Agreement and the Declaration under the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder, and (c) such consents, approvals, authorizations, registrations or qualifications as may be required by under the ~~securities or Blue Sky laws~~ Securities Exchange Act of 1934, as amended, and the rules and regulations of the ~~various states or the~~ Commission thereunder and applicable state securities laws ~~of non-U.S jurisdictions~~ in connection with the ~~Exchange Offer~~purchase of the Units (and the securities which are components of the Units as set forth above) by the Underwriters pursuant to the Underwriting Agreement. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (mp) Neither the Company nor the Trust is, or will be after ~~giving effect to~~ the ~~consummation~~ application of the ~~Exchange Offer, will be,~~ net proceeds of the offering of the Units and ~~neither~~ the ~~Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is~~Common Offering, an "investment ~~company~~ company" within the meaning of such term under the Investment Company Act of 1940, as amended~~. (n) Each~~ , and the rules and regulations of the ~~Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida)~~Commission thereunder. (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, independent certified public accountants as required by the Securities Act.

Appears in 1 contract

Samples: Terms Agreement (Raytheon Co/)

Representations and Warranties of the Company and the Trust. Each of the Company and the Trust jointly and severally ~~represents~~ represent and ~~warrants~~ warrant to and agrees with each of the ~~Co-~~Dealer Managers that: (a) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Securities Act, will comply when so filed, in all material respects, as to form with the Securities Act and the Exchange Act; the Registration Statement at the time it becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; each part of the Registration Statement when such part becomes effective will not contain, and each such part, as amended, if applicable, will not contain, any 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 as of the Commencement Date and the Exchange Date, none of the Prospectus or the other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section ~~5(a~~6 (a) do not apply (A) to statements or omissions made based upon and in conformity with information supplied in writing by ~~a Co-~~either of the Dealer ~~Manager~~ Managers through Merrxxx Xxxch, Pierce, Fennxx & Xmitx ~~Incorporated~~ Xxxorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the Guarantee. (b) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trust~~. (c)~~ . The Preferred Securities to be issued pursuant to the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation to the extent then a subsidiary of the Company (collectively, the "Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and the shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by the Company and the Trust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained under the Securities Act, the Exchange Act or the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection with the Exchange Offer. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) Neither the Company nor the Trust is, or after giving effect to the consummation of the Exchange Offer, will be, and neither the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (n) Each of the Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, independent certified public accountants as required by the Securities Act.thereto

Appears in 1 contract

Samples: Dealer Manager Agreement (Ual Corp Capital Trust I)

Representations and Warranties of the Company and the Trust. ~~Each of the~~ The Company and the Trust jointly and severally ~~represents~~ represent and ~~warrants to~~ warrant (i) on and ~~agrees with each~~ as of the ~~Co-Dealer Managers~~ date any Remarketing Materials are first distributed in connection with the Remarketing (the "COMMENCEMENT DATE"), (ii) on and as of the Remarketing Date, and (iii) on and as of the Purchase Contract Settlement Date, that: (a) Each ~~preliminary prospectus filed~~ of the representations and warranties of the Company and the Trust as ~~part~~ set forth in Sections 4(d)- (gg) of the Underwriting Agreement dated as of ___________, 2001 (the "UNDERWRITING AGREEMENT") among the Company, the Trust and the Underwriters identified in Schedule I thereto, is true and correct as if made on each of the dates specified above; provided that, for purposes of this Section 3(a), any reference in such sections of the Underwriting Agreement to (i) the "Registration Statement" or the "Prospectus" shall be deemed to refer to such terms as defined herein and (ii) the "Closing Date" or the "Additional Closing Date" shall be deemed to refer to the Remarketing Date as defined herein. (b) The Registration Statement, if any, in the form heretofore delivered or to be delivered to the Remarketing Agent, has been declared effective by the Commission in such form; and no stop order suspending the effectiveness of the Registration Statement ~~as originally~~ has been issued and no proceeding for that purpose has been initiated or threatened by the Commission. (c) The documents incorporated by reference in the Prospectus, when they were filed ~~or as part of any amendment thereto~~with the Commission, ~~or filed pursuant to Rule 424 of the Securities Act, will comply when so filed,~~ conformed in all material ~~respects~~respects to the requirements of the Exchange Act 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act 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, in light of the circumstances under which they were made, not misleading. (d) The Registration Statement, if any, conforms (and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform) in all material respects to ~~form with~~ the requirements of the Securities Act and the ~~Exchange Act;~~ rules and regulations promulgated thereunder, and the Registration Statement ~~at the time it becomes effective~~ and the ~~Prospectus~~ Remarketing Materials (and any ~~other Offering Materials, on~~ amendment or supplement thereto) as of their respective effective or filing dates and as of the Commencement Date, Remarketing Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offer (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act Purchase Contract Settlement Date do not and ~~the Exchange Act; each part of the Registration Statement when such part becomes effective~~ will not ~~contain, and each such part, as amended, if applicable, will not contain,~~ contain any 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 that no representation and warranty is made as ~~of the Commencement Date and the Exchange Date, none of the Prospectus or the other Offering Materials or~~ to any ~~amendments or supplements to such Offering Materials will contain any untrue~~ statement of ~~a material fact~~ eligibility on Form T-1 filed or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 5(a) do not apply (A) to statements or omissions made based upon and in conformity with information supplied in writing incorporated by a Co-Dealer Manager through Merrxxx Xxxch, Pierce, Fennxx & Xmitx Incorporated expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that reference as part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the trustee (the "Indenture Trustee") under the Indenture (as defined herein), as institutional trustee under the Declaration (as defined herein) and as trustee under the GuaranteeStatement. (be) ~~The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declaration, the Indenture and the Guarantee; and this~~ This Agreement has been duly authorized, executed and delivered by the Company. The Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by the Trust. (c) The Preferred Securities to be issued pursuant to the Exchange Offer will be duly authorized by the Trust's Amended and Restated Declaration of Trust (the "Declaration") and, when issued in exchange for Target Securities pursuant to the Exchange Offer, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (d) The Declaration and the Guarantee have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declaration by the Trustees, the Declaration will, as of the Exchange Date, be a valid and binding obligation each of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantee will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at lawTrust. (e) The Indenture between the Company and the Indenture Trustee (including the related supplemental indenture governing the Debentures to be deposited in the Trust, the "Indenture"), will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Debentures to be deposited in the Trust as trust assets in connection with the Exchange Offer have been duly authorized, and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trust pursuant to the terms of the Exchange Offer will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority and has all licenses, permits, orders and other governmental and regulatory approvals, to own or lease its properties and conduct its business in the jurisdictions in which such business is transacted as described in the Prospectus, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (h) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (i) Ford Motor Credit Company ("FMCC"), and each of Ford Holdings, Inc., Associates First Capital Corporation, Associates Corporation of North America, The American Road Insurance Company, USL Capital Corporation, The Hertz Corporation and Granite Management Corporation to the extent then a subsidiary of the Company (collectively, the "Principal Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, and all of the issued shares of capital stock of FMCC and of each of the Principal Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, and the shares of FMCC and of the Principal Subsidiaries owned by the Company, being at least all the outstanding shares of common stock of FMCC, are owned by the Company, directly or indirectly, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, with only such exceptions as are not material to the business of the Company and its subsidiaries considered as a whole. (j) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued 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 respective descriptions thereof contained in the Prospectus. (k) The execution and delivery by the Company and the Trust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Declaration, the Indenture and the Guarantee, the issuance and delivery by the Trust of the Preferred Securities and the consummation of the Exchange Offer and the fulfillment of the terms herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (including the Trust) is a party or by which the Company or any of its subsidiaries (including the Trust) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Trust) is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or the declaration of trust of the Trust, nor will such actions result in any violation (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole) of any statute or any order, rule or regulation of any court or regulatory authority or other governmental body having jurisdiction over the Trust or the Company or any of its subsidiaries or any of their properties; and no consent, approval or authorization or order of, or qualification with, any governmental body or agency is required for, and the absence of which would materially affect, the performance by the Company and the Trust of their obligations under this Agreement, the issuance and delivery of the Preferred Securities and the consummation of the Exchange Offer, except such approvals as will be obtained under the Securities Act, the Exchange Act or the Trust Indenture Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S jurisdictions in connection with the Exchange Offer. (l) There are no legal or governmental proceedings pending to which the Trust or the Company or any of its subsidiaries is a party or of which any of the properties of the Trust or the Company or any of its subsidiaries is the subject other than as disclosed in the Prospectus and other than such proceedings which will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Trust or the Company and its subsidiaries considered as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) Neither the Company nor the Trust is, or after giving effect to the consummation of the Exchange Offer, will be, and neither the Company nor the Trust is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (n) Each of the Company and the Trust has complied with all provisions of Section 517.075 Florida Statutes (Chapter 92-198, Laws of Florida). (o) Coopers & Lybrxxx X.X.P., who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented, are, to the best knowledge of the Company, independent certified public accountants as required by the Securities Act.

Appears in 1 contract

Samples: Remarketing Agreement (Hfi Trust I)

Common use of Representations and Warranties of the Company and the Trust Clause in Contracts