Representations and Warranties of the Offerors. The Offerors jointly and severally represent and warrant to, and agree with, each Underwriter that: (a) The Prior Registration Statements, as of their respective effective dates and also in such form as they may be when any post-effective amendment thereto becomes or shall become effective, and the registration statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective, any Additional Registration Statement when filed with the Commission pursuant to Rule 462(b) under the Securities Act and the Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) under the Securities Act complied or will comply in all material respects with the provisions of the Securities Act and did not and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty does not apply to statements in or omissions from the registration statement or the Prospectus made in reliance upon and in conformity with (i) information relating to any Underwriter furnished to the Offerors in writing by or on behalf of any Underwriter through you expressly for use therein, or (ii) the Statement of Eligibility and Qualification (Form T-1) under the 1939 Act of each of the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee. (b) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. (c) The execution and delivery of, and the performance by the Company and the Trust of their respective obligations under this Agreement have been duly and validly authorized by the Company and the Trust, respectively, and this Agreement has been duly executed and delivered by the Company and the Trust. (d) The Capital Securities have been duly and validly authorized by the Declaration and, when executed by the Trust and authenticated by the Institutional Trustee in accordance with the Declaration and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued and (subject to Sections 9.8 and 3.10(vi) of the Declaration) will be fully paid and non-assessable undivided beneficial interests in the assets of the Trust, will be entitled to the benefits of the Declaration and will conform to all statements relating thereto contained in the Registration Statement and the Prospectus, and any amendment or supplement thereto; the issuance of the Capital Securities is not subject to preemptive or other similar rights; holders of Capital Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware; and the Capital Securities have been registered under the Exchange Act and authorization for listing the Capital Securities on the New York Stock Exchange has been given, subject to notice of official issuance. (e) The Declaration has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and the Regular Trustees, and assuming due execution and delivery by the Institutional Trustee and the Delaware Trustee, the Declaration will be a valid and legally binding obligation of the Company and the Regular Trustees, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Declaration has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto. (f) The Guarantee has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Guarantee Trustee, the Guarantee will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Guarantee has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto. (g) The Indenture has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Indenture Trustee, the Indenture will be a valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto. (h) The Subordinated Debentures have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and issued in accordance with the Indenture and delivered to the Trust against payment therefor as described in the Registration Statement and the Prospectus, and any amendment or supplement thereto, will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will be in the form contemplated by, and entitled to the benefits of, the Indenture and conform to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto. (i) The Trust has been duly created and is validly existing and in good standing as a business trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement and Prospectus, and any amendment or supplement thereto, and to enter into and perform its obligations under this Agreement, the Capital Securities and the Declaration and is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus, and any amendment or supplement thereto; the Trust will be classified as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposes; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles. (j) The Regular Trustees of the Trust are officers of the Company and have been duly authorized by the Company to execute and deliver the Declaration. (k) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to enter into and perform its obligations under this Agreement, the Declaration, the Indenture, the Guarantee and the Subordinated Debentures, and to purchase, own and hold the Common Securities issued by the Trust. (l) The consolidated historical and pro forma financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Securities Act. Such historical financial statements present fairly the consolidated financial position of the Company and its subsidiaries at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated in accordance with generally accepted accounting principles consistently applied throughout such periods. The pro forma financial statements have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are, in the Company's opinion, reasonable. The supplemental financial statements included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto) giving retroactive effect to the merger of a wholly-owned subsidiary of the Company with Citicorp on October 8, 1998 in a transaction accounted for as a pooling of interests present fairly the information purported to be shown therein, at the respective dates and for the respective periods indicated. (m) The Offerors have not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Capital Securities, will not distribute any offering materials in connection with the offering and sale of the Capital Securities other than the Registration Statement, the Prepricing Prospectus, the Prospectus or other materials, if any, permitted by the Securities Act. (n) No holder of any security of the Company or the Trust has any right to require registration of the Capital Securities or of any other security of the Company or the Trust because of the filing of the registration statement or the consummation of the transactions contemplated by this Agreement. (o) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be, and neither the Trust nor the Company is 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.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors jointly and severally represent and warrant to, and agree with, each Underwriter that:
(a) The Prior On each Effective Date, the Registration Statements, as of their respective effective dates and also in such form as they may be when any post-effective amendment thereto becomes or shall become effectiveStatement did, and when the registration statement Final Prospectus is first filed in accordance with Rule 424(b) and on the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effectiveClosing Date, any Additional Registration Statement when filed with the Commission pursuant to Rule 462(b) under the Securities Act and the Final Prospectus (and any supplement or amendment thereto when filed with the Commission under Rule 424(bthereto) under the Securities Act complied or will will, comply in all material respects with the provisions applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and on the date hereof, the Registration Statement did not and will not at contain any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty does not apply to statements in or omissions from the registration statement or the Prospectus made in reliance upon and in conformity with (i) information relating to any Underwriter furnished to the Offerors in writing by or on behalf of any Underwriter through you expressly for use therein, or (ii) the Statement of Eligibility and Qualification (Form T-1) under the 1939 Act of each of the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee.
(b) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further documenton the Effective Date and on the Closing Date, when it is filedthe Indenture and the Declaration did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will contain an not include any untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Offerors make no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Citigroup Capital Trustees or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Offerors by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriters consists of the information described as such in Section 7 hereof.
(cb) The execution and delivery of, and the performance by the Company and the Trust of their respective obligations under under, this Agreement have been duly and validly authorized by the Company and the Trust, respectively, and this Agreement has been duly executed and delivered by the Company and the Trust.
(dc) The Capital Securities have been duly and validly authorized by the Declaration and, when executed by the Trust and authenticated by the Institutional Trustee in accordance with the Declaration and delivered to you against payment therefor therefore in accordance with the terms hereof, will be validly issued and (subject to Sections [9.8 and 3.10(vi) 3.10(a)(vi)] of the Declaration) will be fully paid and non-assessable undivided beneficial interests in the assets of the Trust, will be entitled to the benefits of the Declaration and will conform in all material respects to all statements relating thereto contained in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto; the issuance of the Capital Securities is not subject to preemptive or other similar rights; holders of Capital Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware; and the Capital Securities have been registered under the Exchange Act and authorization for listing the Capital Securities on the New York Stock Exchange has been given, subject to notice of official issuance.
(ed) The Declaration has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and the Regular Trustees, and assuming due execution and delivery by the Institutional Trustee and the Delaware Trustee, the Declaration will be a valid and legally binding obligation of the Company and the Regular Trustees, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Declaration has been (or will have been) duly qualified under the 1939 Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(fe) The Guarantee has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Guarantee Trustee, the Guarantee will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Guarantee has been (or will have been) duly qualified under the 1939 Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Prospectus, and any amendment or supplement thereto.
(gf) The Indenture has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Indenture Trustee, the Indenture will be a valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been (or will have been) duly qualified under the 1939 Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(hg) The Subordinated Debentures have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and issued in accordance with the Indenture and delivered to the Trust against payment therefor therefore as described in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto, will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will be in the form contemplated by, and entitled to the benefits of, the Indenture and conform in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(ih) The Trust has been duly created and is validly existing and in good standing as a business statutory trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement and Final Prospectus, and any amendment or supplement thereto, and to enter into and perform its obligations under this Agreement, the Capital Securities and the Declaration and is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the Final Prospectus, and any amendment or supplement thereto; the Trust will be classified as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposes; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(ji) The Regular Trustees of the Trust are officers of the Company and have been duly authorized by the Company to execute and deliver the Declaration.
(k) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to enter into and perform its obligations under this Agreement, the Declaration, the Indenture, the Guarantee and the Subordinated Debentures, and to purchase, own and hold the Common Securities issued by the Trust.
(l) The consolidated historical and pro forma financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Securities Act. Such historical financial statements present fairly the consolidated financial position of the Company and its subsidiaries at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated in accordance with generally accepted accounting principles consistently applied throughout such periods. The pro forma financial statements have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are, in the Company's opinion, reasonable. The supplemental financial statements included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto) giving retroactive effect to the merger of a wholly-owned subsidiary of the Company with Citicorp on October 8, 1998 in a transaction accounted for as a pooling of interests present fairly the information purported to be shown therein, at the respective dates and for the respective periods indicated.
(m) The Offerors have not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Capital Securities, will not distribute any offering materials in connection with the offering and sale of the Capital Securities other than the Registration Statement, the Prepricing Prospectus, the Prospectus or other materials, if any, permitted by the Securities Act.
(n) No holder of any security of the Company or the Trust has any right to require registration of the Capital Securities or of any other security of the Company or the Trust because of the filing of the registration statement or the consummation of the transactions contemplated by this Agreement.
(oj) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be, and neither the Trust nor the Company is 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.
(k) As of the date hereof, the Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Offerors by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Offerors or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Capital Securities in reliance on the exemption in Rule 163 and (iv) on the date hereof (with such date being used as the determination date for purposes of this clause (iv)), each of the Offerors was or is (as the case may be) a "well-known seasoned issuer" as defined in Rule 405. The Offerors agree to pay the fees required by the Commission relating to the Capital Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(i) At the earliest time after the filing of the Registration Statement that the Offerors or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Capital Securities and (ii) as of the date hereof (with such date being used as the determination date for purposes of this clause (ii)), neither of the Offerors was or is an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Offerors be considered an Ineligible Issuers.
(n) Neither any Issuer Free Writing Prospectus nor the Final Term Sheet includes any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus nor the Final Term Sheet based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof. Any certificate signed by any officer of the Company or trustee of the Trust and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Capital Securities shall be deemed a representation and warranty by either the Company or the Trust, as the case may be, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors jointly and severally represent and warrant to, and agree with, each Underwriter that:
(a) The Prior On each Effective Date, the Registration Statements, as of their respective effective dates and also in such form as they may be when any post-effective amendment thereto becomes or shall become effectiveStatement did, and when the registration statement Final Prospectus is first filed in accordance with Rule 424(b) and on the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effectiveClosing Date, any Additional Registration Statement when filed with the Commission pursuant to Rule 462(b) under the Securities Act and the Final Prospectus (and any supplement or amendment thereto when filed with the Commission under Rule 424(bthereto) under the Securities Act complied or will will, comply in all material respects with the provisions applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and on the date hereof, the Registration Statement did not and will not at contain any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty does not apply to statements in or omissions from the registration statement or the Prospectus made in reliance upon and in conformity with (i) information relating to any Underwriter furnished to the Offerors in writing by or on behalf of any Underwriter through you expressly for use therein, or (ii) the Statement of Eligibility and Qualification (Form T-1) under the 1939 Act of each of the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee.
(b) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further documenton the Effective Date and on the Closing Date, when it is filedthe Indenture and the Declaration did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will contain an not include any untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Offerors make no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Citigroup Capital Trustees or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Offerors by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriters consists of the information described as such in Section 7 hereof.
(cb) The execution and delivery of, and the performance by the Company and the Trust of their respective obligations under under, this Agreement have been duly and validly authorized by the Company and the Trust, respectively, and this Agreement has been duly executed and delivered by the Company and the Trust.
(dc) The Capital Securities have been duly and validly authorized by the Declaration and, when executed by the Trust and authenticated by the Institutional Trustee in accordance with the Declaration and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued and (subject to Sections 9.8 and 3.10(vi3.10(a)(vi) of the Declaration) will be fully paid and non-assessable undivided beneficial interests in the assets of the Trust, will be entitled to the benefits of the Declaration and will conform in all material respects to all statements relating thereto contained in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto; the issuance of the Capital Securities is not subject to preemptive or other similar rights; holders of Capital Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware; and the Capital Securities have been registered under the Exchange Act and authorization for listing the Capital Securities on the New York Stock Exchange has been given, subject to notice of official issuance.
(ed) The Declaration has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and the Regular Trustees, and assuming due execution and delivery by the Institutional Trustee and the Delaware Trustee, the Declaration will be a valid and legally binding obligation of the Company and the Regular Trustees, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' ’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Declaration has been (or will have been) duly qualified under the 1939 Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(fe) The Guarantee has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Guarantee Trustee, the Guarantee will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' ’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Guarantee has been (or will have been) duly qualified under the 1939 Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(gf) The Indenture has been duly and validly authorized by the Company Company, and, at the Closing Date, will have been duly executed and delivered by the CompanyCompany and the Indenture Trustee, and assuming due execution and delivery by the Company and the Indenture Trustee, the Indenture will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' ’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been (or will have been) duly qualified under the 1939 Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(hg) The Subordinated Debentures have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and issued in accordance with the Indenture and delivered to the Trust against payment therefor as described in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto, will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' ’ rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will be in the form contemplated by, and entitled to the benefits of, the Indenture and conform in all material respects to the description thereof in the Registration Statement Statement, the Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(ih) The Trust has been duly created and is validly existing and in good standing as a business statutory trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement and Final Prospectus, and any amendment or supplement thereto, and to enter into and perform its obligations under this Agreement, the Capital Securities and the Declaration and is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the Final Prospectus, and any amendment or supplement thereto; the Trust will be classified as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposes; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(ji) The Regular Trustees of the Trust are officers of the Company and have been duly authorized by the Company to execute and deliver the Declaration.
(k) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to enter into and perform its obligations under this Agreement, the Declaration, the Indenture, the Guarantee and the Subordinated Debentures, and to purchase, own and hold the Common Securities issued by the Trust.
(l) The consolidated historical and pro forma financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Securities Act. Such historical financial statements present fairly the consolidated financial position of the Company and its subsidiaries at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated in accordance with generally accepted accounting principles consistently applied throughout such periods. The pro forma financial statements have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are, in the Company's opinion, reasonable. The supplemental financial statements included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto) giving retroactive effect to the merger of a wholly-owned subsidiary of the Company with Citicorp on October 8, 1998 in a transaction accounted for as a pooling of interests present fairly the information purported to be shown therein, at the respective dates and for the respective periods indicated.
(m) The Offerors have not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Capital Securities, will not distribute any offering materials in connection with the offering and sale of the Capital Securities other than the Registration Statement, the Prepricing Prospectus, the Prospectus or other materials, if any, permitted by the Securities Act.
(n) No holder of any security of the Company or the Trust has any right to require registration of the Capital Securities or of any other security of the Company or the Trust because of the filing of the registration statement or the consummation of the transactions contemplated by this Agreement.
(oj) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be, and neither the Trust nor the Company is 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.
(k) As of the date hereof, the Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Offerors by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Offerors or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Capital Securities in reliance on the exemption in Rule 163 and (iv) on the date hereof (with such date being used as the determination date for purposes of this clause (iv)), each of the Offerors was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Offerors agree to pay the fees required by the Commission relating to the Capital Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(i) At the earliest time after the filing of the Registration Statement that the Offerors or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Capital Securities and (ii) as of the date hereof (with such date being used as the determination date for purposes of this clause (ii)), neither of the Offerors was or is an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Offerors be considered Ineligible Issuers.
(n) Neither any Issuer Free Writing Prospectus nor the Final Term Sheet includes any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus nor the Final Term Sheet based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof. Any certificate signed by any officer of the Company or trustee of the Trust and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Capital Securities shall be deemed a representation and warranty by either the Company or the Trust, as the case may be, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors jointly and severally represent and warrant to, and agree with, each Underwriter the several Underwriters as of the date hereof and as of the Closing Date (as hereinafter defined) that:
(a) The Prior Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus relating to the proposed offering of the Trust Preferred Securities nor instituted or threatened any proceedings for that purpose. The Registration StatementsStatement, as on the date it was or is declared effective by the Commission, each Preliminary Prospectus, on the date of their respective effective dates and also in such form as they may be when any post-effective amendment thereto becomes or shall become effective, and the registration statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective, any Additional Registration Statement when filed filing thereof with the Commission pursuant to Rule 462(b) under the Securities Act Commission, and the Prospectus and any amendment or supplement or amendment thereto when filed thereto, on the date of filing thereof with the Commission under Rule 424(b(or if not filed, on the date provided by the Offerors to the Underwriters in connection with the offering and sale of the securities) under and at the Securities Act complied Closing Date conformed or will comply in all material respects conform with the provisions requirements of the Securities Act, the Rules and Regulations and the Trust Indenture Act and the rules and regulations thereunder. The Registration Statement, on the date it was or is declared effective by the Commission, upon the filing or first delivery to the Underwriters of the Prospectus (or any supplement to the Prospectus) and at the Closing Date did not and or will not at any such times 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 therein, in light of the circumstances under which they were made, not misleading; each Preliminary Prospectus; and on the date of the filing thereof with the Commission, except that this representation and warranty does not apply to statements in or omissions from the registration statement or the Prospectus made in reliance upon and in conformity any amendment or supplement thereto, on the date of filing thereof with the Commission (i) information relating to any Underwriter furnished or if not filed, on the date provided by the Offerors to the Offerors Underwriters in writing by or on behalf of any Underwriter through you expressly for use therein, or (ii) connection with the Statement of Eligibility offering and Qualification (Form T-1) under the 1939 Act of each sale of the Institutional Trustee, Securities) and at the Guarantee Trustee Closing Date did not and the Indenture Trustee.
(b) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained will not include an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(c) The execution and delivery of, and ; provided that the performance by the Company and the Trust of their respective obligations under this Agreement have been duly and validly authorized by the Company and the Trust, respectively, and this Agreement has been duly executed and delivered by the Company and the Trust.
(d) The Capital Securities have been duly and validly authorized by the Declaration and, when executed by the Trust and authenticated by the Institutional Trustee in accordance with the Declaration and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued and (subject to Sections 9.8 and 3.10(vi) of the Declaration) will be fully paid and non-assessable undivided beneficial interests in the assets of the Trust, will be entitled to the benefits of the Declaration and will conform to all statements relating thereto contained in the Registration Statement and the Prospectus, and any amendment or supplement thereto; the issuance of the Capital Securities is not subject to preemptive or other similar rights; holders of Capital Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware; and the Capital Securities have been registered under the Exchange Act and authorization for listing the Capital Securities on the New York Stock Exchange has been given, subject to notice of official issuance.
(e) The Declaration has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and the Regular Trustees, and assuming due execution and delivery by the Institutional Trustee and the Delaware Trustee, the Declaration will be a valid and legally binding obligation of the Company and the Regular Trustees, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Declaration has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(f) The Guarantee has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Guarantee Trustee, the Guarantee will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Guarantee has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(g) The Indenture has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Indenture Trustee, the Indenture will be a valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(h) The Subordinated Debentures have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and issued in accordance with the Indenture and delivered to the Trust against payment therefor as described in the Registration Statement and the Prospectus, and any amendment or supplement thereto, will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will be in the form contemplated by, and entitled to the benefits of, the Indenture and conform to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(i) The Trust has been duly created and is validly existing and in good standing as a business trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement and Prospectus, and any amendment or supplement thereto, and to enter into and perform its obligations under this Agreement, the Capital Securities and the Declaration and is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus, and any amendment or supplement thereto; the Trust will be classified as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposes; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(j) The Regular Trustees of the Trust are officers of the Company and have been duly authorized by the Company to execute and deliver the Declaration.
(k) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to enter into and perform its obligations under this Agreement, the Declaration, the Indenture, the Guarantee and the Subordinated Debentures, and to purchase, own and hold the Common Securities issued by the Trust.
(l) The consolidated historical and pro forma financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Securities Act. Such historical financial statements present fairly the consolidated financial position of the Company and its subsidiaries at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated in accordance with generally accepted accounting principles consistently applied throughout such periods. The pro forma financial statements have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are, in the Company's opinion, reasonable. The supplemental financial statements included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto) giving retroactive effect to the merger of a wholly-owned subsidiary of the Company with Citicorp on October 8, 1998 in a transaction accounted for as a pooling of interests present fairly the information purported to be shown therein, at the respective dates and for the respective periods indicated.
(m) The Offerors have not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Capital Securities, will not distribute any offering materials in connection with the offering and sale of the Capital Securities other than the Registration Statement, the Prepricing Prospectus, the Prospectus or other materials, if any, permitted by the Securities Act.
(n) No holder of any security of the Company or the Trust has any right to require registration of the Capital Securities or of any other security of the Company or the Trust because of the filing of the registration statement or the consummation of the transactions contemplated by this Agreement.
(o) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be, and neither the Trust nor the Company is 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.foregoing shall not
Appears in 1 contract
Samples: Underwriting Agreement (Prosperity Capital Trust I)
Representations and Warranties of the Offerors. (a) The Offerors jointly and severally represent and warrant to, and agree with, each Underwriter of the Underwriters that:
(ai) The Prior Registration StatementsStatement has been declared effective under the Act, as of their respective effective dates and also in such form as they may be when any no post-effective amendment thereto becomes or shall become effective, and to the registration statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective, any Additional Registration Statement when has been filed with the Commission pursuant to Rule 462(bas of the date of this Agreement. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission.
(ii) under No order preventing or suspending the Securities Act use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) under the Securities Act complied or will comply time of filing thereof, conformed in all material respects with to the provisions requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission promulgated thereunder, and did not and will not at any such times 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 therein, in light of the circumstances under which they were made, not misleading; provided, except however, that this the Offerors make no representation and or warranty does not apply as to statements information contained in or omissions from the registration statement or the Prospectus made omitted in reliance upon upon, and in conformity with (i) with, written information relating to any Underwriter furnished to the Offerors in writing by or on behalf of any Underwriter through you Underwriter, expressly for use in the preparation thereof.
(iii) The Registration Statement conforms, and the Prospectus and any amendments or supplements thereto will conform, in all material respects to the requirements of the Act, including for use of Form S-3, and the Trust Indenture Act and the rules and regulations thereunder. Neither the Registration Statement nor any amendment thereto, and neither the Prospectus nor any supplement thereto, contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any 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; provided, however, that the Offerors make no representation or warranty as to (A) information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Offerors by or on behalf of any Underwriter, expressly for use in the preparation thereof or (iiB) information in those parts of the Registration Statement which constitute the Statement of Eligibility and Qualification ("Form T-1") under the 1939 Act of each of the Institutional Trustee, the Guarantee Trustee and the Trust Indenture Trustee.
(b) Act. The Incorporated Documents heretofore filedDocuments, when they were or will be filed (or, if any amendment with respect to any such document was filed, when such amendment was filed)the Commission, conformed or will conform in all material respects with to the requirements of the Exchange Act and the rules and regulations thereunder, any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements none of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), documents contained or will contain an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(civ) The execution and delivery of, and the performance by the Company and the Trust each of their respective obligations under this Agreement its subsidiaries have been duly incorporated and validly authorized by the Company and the Trust, respectively, and this Agreement has been duly executed and delivered by the Company and the Trust.
(d) The Capital Securities have been duly and validly authorized by the Declaration and, when executed by the Trust and authenticated by the Institutional Trustee in accordance with the Declaration and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued and (subject to Sections 9.8 and 3.10(vi) of the Declaration) will be fully paid and non-assessable undivided beneficial interests in the assets of the Trust, will be entitled to the benefits of the Declaration and will conform to all statements relating thereto contained in the Registration Statement and the Prospectus, and any amendment or supplement thereto; the issuance of the Capital Securities is not subject to preemptive or other similar rights; holders of Capital Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware; and the Capital Securities have been registered under the Exchange Act and authorization for listing the Capital Securities on the New York Stock Exchange has been given, subject to notice of official issuance.
(e) The Declaration has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and the Regular Trustees, and assuming due execution and delivery by the Institutional Trustee and the Delaware Trustee, the Declaration will be a valid and legally binding obligation of the Company and the Regular Trustees, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Declaration has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(f) The Guarantee has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Guarantee Trustee, the Guarantee will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Guarantee has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(g) The Indenture has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Indenture Trustee, the Indenture will be a valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(h) The Subordinated Debentures have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and issued in accordance with the Indenture and delivered to the Trust against payment therefor as described in the Registration Statement and the Prospectus, and any amendment or supplement thereto, will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will be in the form contemplated by, and entitled to the benefits of, the Indenture and conform to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(i) The Trust has been duly created and is are validly existing and in good standing as a business trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement and Prospectus, and any amendment corporations or supplement thereto, and to enter into and perform its obligations under this Agreement, the Capital Securities and the Declaration and is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus, and any amendment or supplement thereto; the Trust will be classified as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposes; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(j) The Regular Trustees of the Trust are officers of the Company and have been duly authorized by the Company to execute and deliver the Declaration.
(k) The Company is a corporation duly organized and validly existing banking associations in good standing under the laws of the State their respective places of Delaware incorporation, with full corporate power and authority to enter into own their respective properties and perform conduct their respective businesses as described in the Prospectus; the Company and each of its obligations non-bank subsidiaries are duly qualified to do business as foreign corporations under this Agreement, the Declaration, the Indenture, the Guarantee and the Subordinated Debenturescorporation law of, and are in good standing as such in, each jurisdiction in which such qualification is required except in any such case where the failure to purchase, own and hold so qualify or be in good standing would not have a material adverse effect upon the Common Securities issued by the Trust.
condition (lfinancial or otherwise) The consolidated historical and pro forma financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements results of the Securities Act. Such historical financial statements present fairly the consolidated financial position operations of the Company and its subsidiaries at the respective dates indicated taken as a whole; and the results no proceeding of their operations and their cash flows for the respective periods indicated in accordance with generally accepted accounting principles consistently applied throughout such periods. The pro forma financial statements have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are, in the Company's opinion, reasonable. The supplemental financial statements included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto) giving retroactive effect to the merger of a wholly-owned subsidiary of which the Company with Citicorp on October 8, 1998 has knowledge has been instituted in a transaction accounted for as a pooling of interests present fairly the information purported to be shown therein, at the respective dates and for the respective periods indicated.
(m) The Offerors have not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Capital Securities, will not distribute any offering materials in connection with the offering and sale of the Capital Securities other than the Registration Statement, the Prepricing Prospectus, the Prospectus or other materials, if any, permitted by the Securities Act.
(n) No holder of any security of the Company or the Trust has any right to require registration of the Capital Securities or of any other security of the Company or the Trust because of the filing of the registration statement or the consummation of the transactions contemplated by this Agreement.
(o) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be, and neither the Trust nor the Company is 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.such jurisdiction,
Appears in 1 contract
Samples: Underwriting Agreement (First Busey Capital Trust I)
Representations and Warranties of the Offerors. (a) The Offerors jointly and severally represent and warrant to, and agree with, each Underwriter of the Underwriters that:
(ai) The Prior Registration StatementsStatement has been declared effective under the Act, as of their respective effective dates and also in such form as they may be when any no post-effective amendment thereto becomes or shall become effective, and to the registration statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective, any Additional Registration Statement when has been filed with the Commission pursuant as of the date of this Agreement. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission.
(ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to Rule 462(bthe requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission promulgated thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Offerors make no representation or warranty as to information contained in or omitted in reliance upon, and in conformity with, written information furnished to the Offerors by or on behalf of any Underwriter, expressly for use in the preparation thereof.
(iii) under the Securities Act The Registration Statement conforms, and the Prospectus and any amendments or supplements thereto will conform, in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder. Neither the Registration Statement nor any amendment thereto, and neither the Prospectus nor any supplement thereto, contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any 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; provided, however, that the Offerors make no representation or warranty as to (i) information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment thereto or supplement, in reliance upon, and in conformity with, written information 3 furnished to the Offerors by or on behalf of any Underwriter, expressly for use in the preparation thereof or (ii) information in those parts of the Registration Statement which constitute Statements of Eligibility and Qualification ("Form T-1") under the Trust Indenture Act.
(iv) The documents of the Company incorporated by reference in the Registration Statement and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Exchange Act of 1934, as amended (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 not misleading; and any further documents so filed and incorporated by reference in the Registration Statement and the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission under Rule 424(b) under the Securities Act complied or will comply conform in all material respects with to the provisions requirements of the Securities Exchange Act and did not the rules and regulations of the Commission thereunder, and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty does not apply to statements in or omissions from the registration statement or the Prospectus made in reliance upon and in conformity with (i) information relating to any Underwriter furnished to the Offerors in writing by or on behalf of any Underwriter through you expressly for use therein, or (ii) the Statement of Eligibility and Qualification (Form T-1) under the 1939 Act of each of the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee.
(b) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(c) The execution and delivery of, and the performance by the Company and the Trust of their respective obligations under this Agreement have been duly and validly authorized by the Company and the Trust, respectively, and this Agreement has been duly executed and delivered by the Company and the Trust.
(d) The Capital Securities have been duly and validly authorized by the Declaration and, when executed by the Trust and authenticated by the Institutional Trustee in accordance with the Declaration and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued and (subject to Sections 9.8 and 3.10(vi) of the Declaration) will be fully paid and non-assessable undivided beneficial interests in the assets of the Trust, will be entitled to the benefits of the Declaration and will conform to all statements relating thereto contained in the Registration Statement and the Prospectus, and any amendment or supplement thereto; the issuance of the Capital Securities is not subject to preemptive or other similar rights; holders of Capital Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware; and the Capital Securities have been registered under the Exchange Act and authorization for listing the Capital Securities on the New York Stock Exchange has been given, subject to notice of official issuance.
(e) The Declaration has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and the Regular Trustees, and assuming due execution and delivery by the Institutional Trustee and the Delaware Trustee, the Declaration will be a valid and legally binding obligation of the Company and the Regular Trustees, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Declaration has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(f) The Guarantee has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Guarantee Trustee, the Guarantee will be a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Guarantee has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(g) The Indenture has been duly and validly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company, and assuming due execution and delivery by the Indenture Trustee, the Indenture will be a valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been (or will have been) duly qualified under the 1939 Act and conforms to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(h) The Subordinated Debentures have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and issued in accordance with the Indenture and delivered to the Trust against payment therefor as described in the Registration Statement and the Prospectus, and any amendment or supplement thereto, will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will be in the form contemplated by, and entitled to the benefits of, the Indenture and conform to the description thereof in the Registration Statement and the Prospectus, and any amendment or supplement thereto.
(iv) The Trust has been duly created and is validly existing and in good standing as a business trust under the Delaware Act with the full trust power and authority to own property and to conduct its business as described in the Registration Statement and Prospectus, and any amendment or supplement thereto, and to enter into and perform its obligations under this Agreement, the Capital Securities and the Declaration Prospectus and is not required to be authorized to do business in any each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole; the Trust has conducted and will conduct no business other jurisdictionthan the transactions contemplated by the Trust Agreement and described in the Prospectus; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus, and any amendment or supplement thereto; the Trust is and will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposescorporation; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(j) The Regular Trustees of the Trust are officers of the Company and have been duly authorized by the Company to execute and deliver the Declaration.
(kvi) The Company is a corporation has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware Washington, is duly registered as a savings and loan holding company under the Home Owners' Loan Act, and is in good standing with full the Office of Thrift Supervision ("OTS"). The significant operating subsidiary of the Company is Sterling Savings Association ("Sterling Savings"). The principal operating subsidiaries of Sterling Savings are Action Mortgage Company ("Action Mortgage"), INTERVEST-Mortgage Investment Company ("INTERVEST") and Harbor Financial Services, Inc. ("Harbor Financial") (Sterling Savings and such other entities being collectively referred to herein as the "Subsidiaries"). Sterling Savings is a savings and loan association chartered by the State of Washington Department of Financial Institutions to conduct the business of savings and loan associations. Sterling Savings is in good standing under the laws of the State of Washington and currently meets the Qualified Thrift Lender Test of the Home Owners' Loan Act. Each Subsidiary has been duly incorporated, is validly 4 existing as a corporation in good standing under the laws of the jurisdiction of its incorporation; is, to the Company's knowledge, in compliance with all applicable federal and state regulatory rules and guidelines; has the corporate power and authority to enter into own or lease its properties and perform conduct its business as described in the Prospectus; and is duly qualified to transact business in all jurisdictions in which the conduct of its business or its ownership or leasing of property requires such qualification and the failure so to qualify would have a material adverse effect on the business or condition, financial or otherwise, of the Company and the Subsidiaries, taken as a whole. All outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, and are owned, directly or indirectly, by the Company free and clear of all liens, encumbrances and security interests, except as disclosed in the Registration Statement and Prospectus. No options, warrants or other rights to purchase, agreements or other obligations under to issue, or other rights to convert any obligations into, shares of capital stock or ownership interests in any of the Subsidiaries are outstanding.
(vii) All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, were offered and sold in compliance with all federal and state securities laws, and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, the Junior Subordinated Debentures, the common securities of the Trust held by the Company (the "Common Securities") or the Capital Securities. Neither the filing of the Registration Statement nor the registration of the Capital Securities, the Guarantee or the Junior Subordinated Debentures gives rise to any rights for or relating to the registration of any capital stock or other securities of the Company or the Trust. The Company has an authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus.
(viii) Each of this Agreement, the Declaration, the Indenture, the Guarantee Trust Agreement, and the Subordinated DebenturesGuarantee Agreement has been duly authorized, executed and delivered by the Company and/or the Trust, as the case may be, and constitutes a valid, legal and binding obligation of the Company and/or the Trust, as the case may be, enforceable in accordance with its terms, except as rights to purchaseindemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, own insolvency, reorganization or similar laws affecting the rights of creditors generally and hold subject to general principles of equity. The execution, delivery and performance of this Agreement, the Common Securities issued Indenture, the Trust Agreement, and the Guarantee Agreement and the consummation of the transactions herein or therein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any indenture, mortgage, deed of trust, loan agreement, lease, franchise, license or other agreement or instrument to which the Trust, the Company or any of the Subsidiaries is a party or by which the Trust, the Company or any of the Subsidiaries is bound or to which any property or assets of the Trust, the Company or any of the Subsidiaries is subject, the Company's or any Subsidiary's charter or bylaws, the Trust Agreement or the
(ix) The Junior Subordinated Debentures have been duly authorized by the TrustCompany and at the Closing Date will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered against payment therefor as described in the Prospectus, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity, will be in the form contemplated by, and entitled to the benefits of, the Indenture, will conform to the statements relating thereto in the Prospectus, and will be owned by the Trust free and clear of any security interest, pledge, lien, encumbrance, claim or equity.
(lx) The consolidated historical Common Securities have been duly authorized by the Trust Agreement and, when issued and pro forma delivered by the Trust to the Company against payment therefor as described in the Prospectus, will be validly issued and (subject to the terms of the Trust Agreement) fully paid and nonassessable undivided beneficial interests in the assets of the Trust and will conform to all statements relating thereto contained in the Prospectus; and at the Closing Date all of the issued and outstanding Common Securities of the Trust will be directly owned by the Company free and clear of any security interest, pledge, lien, encumbrance, claim or equity.
(xi) The Capital Securities have been duly authorized by the Trust Agreement and, when issued and delivered pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable undivided beneficial interests in the Trust, will be entitled to the benefits of the Trust Agreement and will conform to the statements relating thereto contained in the Prospectus; and holders of Capital Securities will
(xii) The Indenture, the Trust Agreement, and the Guarantee Agreement are in substantially the respective forms filed as exhibits to the Registration Statement.
(xiii) The Company's obligations under the Guarantee are subordinated and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are subordinate and junior in right of payment to all Senior Indebtedness of the Company.
(xv) The financial statements, together with the related schedules notes and notesschedules, included contained or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Securities Act. Such historical financial statements present fairly the consolidated financial position position, results of operations, shareholders' equity and cash flows of the Company and its subsidiaries consolidated Subsidiaries on the basis stated therein at the respective indicated dates indicated and the results of their operations and their cash flows for the respective periods indicated periods. Such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, and all adjustments necessary for a fair presentation of results for such periodsperiods have been made, except as otherwise stated therein. The pro forma summary financial statements have been prepared data included in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled Registration Statement present fairly the information shown therein on the basis described therein, and the assumptions used in the preparation thereof are, in the Company's opinion, reasonable. The supplemental financial statements included or incorporated by reference stated in the Registration Statement and have been compiled on a basis consistent with the Prospectus (and any amendment or supplement thereto) giving retroactive effect to the merger of a wholly-owned subsidiary of the Company with Citicorp on October 8, 1998 in a transaction accounted for as a pooling of interests present fairly the information purported to be shown financial statements presented therein, at the respective dates and for the respective periods indicated.
(mxvi) The Offerors have not distributed andThere is no action or proceeding pending or, prior to the later to occur of (i) the Closing Date and (ii) completion knowledge of the distribution Trust or the Company, threatened or contemplated against any of the Capital SecuritiesTrust, will not distribute the Company or any offering materials Subsidiary before any court or administrative or regulatory agency which, if determined adversely to the Trust, the Company or such Subsidiary would, individually or in connection with the offering and sale aggregate, result in a material adverse change in the business or condition (financial or otherwise), results of operations, shareholders' equity or prospects of the Capital Securities other than Trust, the Company or such Subsidiary, taken as a whole, except as set forth in the Registration Statement.
(xvii) There are no contracts or documents of the Trust or the Company or any Subsidiary that are required by the Act or by the rules and regulations thereunder to be filed as exhibits to the Registration Statement or any document incorporated by reference therein which contracts or documents have not been so filed.
(xviii) The Company and the Subsidiaries have good and marketable title to all properties and assets reflected as owned in the financial statements hereinabove described (or as described as owned in the Prospectus), the Prepricing Prospectusin each case free and clear of all liens, encumbrances and defects, except such as are described in the Prospectus or other materials, if any, permitted do not substantially affect the value of such properties and assets and do not materially interfere with the use made and proposed to be made of such properties and assets by the Securities Act.
(n) No holder of Company and the Subsidiaries; and any security of the Company or the Trust has any right to require registration of the Capital Securities or of any other security of the Company or the Trust because of the filing of the registration statement or the consummation of the transactions contemplated real property and buildings held under lease by this Agreement.
(o) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be, and neither the Trust nor the Company is 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.the
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