Representations and Warranties of the Offerors. The Offerors represent and warrant to the several Underwriters that: (a) The Offerors have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including a prospectus, on November , 1995 (Registration Nos. 33-__________ and 33________) for the registration of $___,000,000 aggregate liquidation preference amount of the Trust's Preferred Securities ("Preferred Securities"), a like principal amount of Debentures and the Guarantee under the Securities Act of 1933, as amended (the "Securities Act"). Such registration statement ("registration statement Nos. 33-________ and 33_______") was declared effective by the Commission on . References herein to the term "Registration Statement" as of any date shall be deemed to refer to registration statement Nos. 33-________ and 33-___________, as amended or supplemented to such date, including all documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"). References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus forming a part of registration statement Nos. 33-________ and 33- ___________, as amended or supplemented as of such date, including all Incorporated Documents as of such date. References herein to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Nos. 33-________ and 33-___________ was declared effective or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter defined. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a date prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus. (b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules and regulations of the Commission thereunder, and, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or to any statements in or omissions from the Statement of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of the trustee under each of the Trust Agreement, the Indenture and the Guarantee. (c) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is now a party.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors represent and warrant to the several Underwriters that:
(a) The Offerors have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including a prospectus, on November January __, 1995 1998 (Registration Nos. 33-__333-________ and 33________333-_____-01) for the registration of $___,000,000 aggregate liquidation preference amount of the Trust's Preferred Securities ("Preferred Securities"), a like principal amount of Debentures and the Guarantee under the Securities Act of 1933, as amended (the "Securities Act")) of an aggregate of $275,000,000 of unsecured debt securities ("Debt Securities") of the Company and Preferred Securities of the Trust. With respect to any issuance of Preferred Securities such registration statement also registers under the Securities Act, the Debentures, the Guarantee and other obligations of the Company. Such registration statement ("registration statement Nos. 33-was declared effective by the Commission on ________ and 33_______") was declared effective by the Commission on ____, 1998. References herein to the term "Registration StatementState- ment" as of any date shall be deemed to refer to registration statement Nos. 33-___333-_____ and 33-___________333-_____-01, as amended or supplemented to such date, including all documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"). References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus forming a part of registration statement Nos. 33-__333-______ and 33- 333- ___________-01, as amended or supplemented as of such datedate (other than by amendments or supplements relating to Debt Securities), including all Incorporated Documents as of such date and including the prospectus supplement with respect to the Preferred Securities, the Debentures and the Guarantee, as amended and supplemented as of such date. References herein to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Nos. 33-___333-_____ and 33-___________ 333-_____-01 was declared effective or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter definedeffective. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Incor- porated Document filed with the Commission on a date prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules and regulations of the Commission thereunder, and, when read together with the Prospectus on said dates dates, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or to any statements in or omissions from the Statement of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of the trustee under each of the Trust Agreement, the Indenture and the Guarantee.
(c) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is now a party.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors represent and warrant to the several Underwriters that:
(a) The Offerors and [name additional registrants] have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3S-3 on , including a prospectus, on November , 1995 1999 (Registration Nos. 33-__________ 333 , 333 -01, 333 - 02 and 33________333 -03) for the registration of $___,000,000 aggregate liquidation preference amount of the Trust's Preferred Securities ("Preferred Securities"), a like principal amount of Debentures and the Guarantee under the Securities Act of 1933, as amended (the "Securities Act"), of $510,000,000 aggregate amount of (i) the Company's Preference Stock, $25 par value, (ii) the Company's unsecured debt securities ("Debt Securities") and (iii) the preferred trust securities of the Trust and [name additional registrants], an equal principal amount of the Company's junior subordinated debentures and guarantees and other obligations of the Company in respect of such preferred trust securities. Such registration statement ("registration statement NosRegistration Statement No. 33-________ and 33_______333 ") included a combined prospectus relating to such securities, to $170,000,000 aggregate amount of Stock Purchase Contracts, Common Stock to be issued in settlement thereof, Stock Purchase Units and Debt Securities registered under a prior registration statement, and to $170,000,000 of Debt Securities registered under another prior registration statement. Registration Statement No. 333 was declared effective by the Commission on . References herein to the term "Registration Statement" as of any date shall be deemed to refer to registration statement NosRegistration Statement No. 33-________ and 33-___________333 , as amended or supplemented to such date, including all documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"); provided that if the Company files a registration statement with respect to securities registered under Registration Statement No. 333 with the Commission pursuant to Section 462(b) of the Securities Act (the "Rule 462(b) Registration Statement"), then after such filing, all references to "Registration Statement" shall be deemed to include the Rule 462(b) Registration Statement. References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus combined prospectus, including any preliminary prospectus, forming a part of registration statement NosRegistration Statement No. 33-________ and 33- ___________333 , as amended or supplemented as of such datedate (other than by amendments or supplements relating to securities other than the Preferred Trust Securities), including all Incorporated Documents as of such datedate and including any prospectus supplement relating to the Preferred Trust Securities. References herein to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Registration Statement No. 333 , any post-effective amendment to Registration Statement Nos. 33-________ and 33-___________ 333 or any Rule 462(b) Registration Statement was declared effective or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter defined. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus on or after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a or after the date of this Agreement and prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules and regulations of the Commission thereunder, and, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or to any statements in or omissions from the Statement of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of the trustee under each of the Trust Agreement, the Indenture and the Guarantee.
(c) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is now a party.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors represent and warrant to the several Underwriters that:
(a) The Offerors and TU Electric Capital have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including a prospectus, on November January , 1995 1997 (Registration Nos. 33-__________ 333- and 33________333- -01) for the registration of $___,000,000 500,000,000 aggregate liquidation preference amount of the Trust's Preferred Securities trust securities ("Preferred Securities"), a like principal amount of Debentures the Company's Junior Subordinated Debentures, one or more Guarantees and other obligations of the Guarantee Company under the Securities Act of 1933, as amended (the "Securities Act"). Such registration statement ("registration statement Nos. 33-________ and 33_______") was declared effective by the Commission on , 1997. References herein to the term "Registration Statement" as of any date shall be deemed to refer to registration statement Nos. 33-________ 333- and 33-___________333- -01, as amended or supplemented to such date, including all documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"). References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus forming a part of registration statement Nos. 33-________ 333- and 33- ___________333- -01, as amended or supplemented as of such datedate (other than by amendments or supplements relating to Securities other than the Securities), including all Incorporated Documents as of such date and including the prospectus supplement subject to completion with respect to the Securities, the Debentures and the related Guarantee included in the Registration Statement, as amended and supplemented as of such date. References herein to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Nos. 33-________ 333- and 33-___________ 333- -01 was declared effective or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter defined. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a date prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules and regulations of the Commission thereunder, and, when read together with the Prospectus on said dates dates, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or to any statements in or omissions from the Statement of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of the trustee under each of the Trust Agreement, the Indenture and the Guarantee.
(c) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is now a party.
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors jointly and severally represent and warrant to to, and agree with, the several Underwriters that:
(a) The Offerors have filed with the Securities and Exchange Commission (the "“Commission"”) a shelf registration statement on Form S-3, including a prospectus, on November , 1995 S-3 (Registration Nos. 33-__________ 333-99363 and 33________333-99363-01) for the registration of $___,000,000 aggregate liquidation relating to (i) debt securities, first mortgage bonds and cumulative preference amount stock of the Trust's Preferred Securities Company and ("Preferred ii) trust preferred securities of the Trust and related guarantees of the Company (collectively, the “Registered Securities"”), a like principal amount of Debentures which include the Securities, and the Guarantee offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Securities “Act"”), and have filed such amendments thereto as may have been required to the date hereof. Such registration statement, as so amended, has been declared effective by the Commission. Such registration statement ("registration statement Nos. 33-________ and 33_______") was declared effective the prospectus relating to the sale of the Registered Securities by the Commission on . References herein to Company or the term "Registration Statement" as of any date shall be deemed to refer to registration statement Nos. 33-________ and 33-___________, as amended or supplemented to such dateTrust constituting a part thereof, including all documents incorporated therein by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"). References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus forming a part of registration statement Nos. 33-________ and 33- ___________reference, as from time to time amended or supplemented as of such date, including all Incorporated Documents as of such date. References herein pursuant to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Nos. 33-________ and 33-___________ was declared effective Act or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter defined. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a date prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), are referred to herein as the “Registration Statement,” and the prospectus relating to the Registered Securities, including all documents incorporated therein by reference, as from time to time amended or supplemented pursuant to the Act or the Exchange Act, including by the Prospectus Supplement (as defined below), is referred to herein as the “Prospectus”; provided, however, that a supplement to the Prospectus relating to an offering of any Registered Securities, other than the Securities, shall be deemed to have supplemented the Prospectus only with respect to the offering of the other Registered Securities to which it relates. All documents filed by the Company with the Commission pursuant to the Exchange Act and incorporated by reference in the Registration Statement or the Prospectus, as aforesaid, are hereinafter referred to as the “Incorporated Documents.”
(b) The Registration Statement, the Prospectus and the Indenture, at the time the Registration Statement became effective complied, as of the date hereof comply and as of the Closing Date (as hereinafter defined) will comply, in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the applicable rules and regulations of the Commission under such Acts; the Incorporated Documents, as of their respective dates of filing with the Commission, complied and will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the Registration Statement and any amendment thereof (including the filing of any annual report on Form 10-K), andat the time it became effective, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided and the Prospectus, at the time the Registration Statement became effective did not, as of the date hereof does not and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing representations and warranties in this paragraph (bSection 1(b) shall not apply to (i) that part of the Registration Statement which constitutes the Statements of Eligibility and Qualification (Forms T-1 and T-2) under the Trust Indenture Act or (ii) statements in or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of from the Registration Statement or the Prospectus made in reliance upon and in conformity with the Provided Statements (as defined below).
(c) PricewaterhouseCoopers LLP, the accountants who certified certain of the financial statements included or to incorporated by reference in the Prospectus, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by reference in the Prospectus present fairly in all material respects the financial position, results of operations and cash flows of the Company at the respective dates and for the respective periods specified and, except as otherwise stated in the Prospectus, such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved. Neither the Company nor the Trust has any statements material contingent obligation which is not disclosed in the Prospectus.
(e) Except as set forth in or omissions from contemplated by the Statement Prospectus, no material transaction has been entered into by the Company (otherwise than in the ordinary course of Eligibility and Qualification under business) or the Trust Indenture Actand no materially adverse change has occurred in the condition, financial or amendments theretootherwise, of the trustee Company or the Trust, in each case since the respective dates as of which information is given in the Prospectus.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Illinois with corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(g) Each significant subsidiary of the Company, as defined in Rule 1-02 of Regulation S-X of the Commission (each a “Significant Subsidiary”), has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly and validly issued and is fully paid and non-assessable; and all of the capital stock of each Significant Subsidiary is owned by the Company free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any Significant Subsidiary is in violation of its articles or certificate of incorporation; the Trust is not in violation of the Declaration or its certificate of trust filed with the State of Delaware on September 5, 2002 (the “Certificate of
(i) The Company has filed with the Illinois Commerce Commission (the “ICC”) a petition with respect to the issuance and sale of the Securities, the purchase of the Common Securities from the Trust and the Company’s participation in the transactions otherwise contemplated by this Agreement or otherwise described in the Prospectus, and the ICC has issued its order authorizing and approving such transactions. No consent of or approval by any other public board or body or administrative agency, federal or state, is necessary to authorize the issuance and sale of the Securities, except as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Offered Securities by the Underwriters in the manner contemplated herein and in the Prospectus.
(j) There is no pending or threatened suit or proceeding before any court or governmental agency, authority or body or any arbitration involving the Company, any of its Significant Subsidiaries or the Trust required to be disclosed in the Prospectus which is not adequately disclosed in the Prospectus.
(k) This Agreement has been duly authorized, executed and delivered by each of the Offerors.
(l) The Declaration has been duly authorized by the necessary corporate action of the Offerors and, at the Closing Date, will have been duly executed and delivered by the Company and the Trustees, and assuming due authorization, execution and delivery of the Declaration by the Property Trustee and the Delaware Trustee, the Declaration will, at the Closing Date, constitute a legal, valid, binding instrument enforceable against the Company, the Trust and the Trustees in accordance with its terms, (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(m) The franchise granted to the Company by the City Council of the City of Chicago under an ordinance effective January 1, 1992, is valid and subsisting and duly authorizes the Company to engage in the electric utility business conducted by it in such City; and the several franchises of the Company outside the City of Chicago are valid and subsisting and authorize the Company to carry on its utility business in the several communities, capable of granting franchises, located in the territory served by the Company outside the City of Chicago (with immaterial exceptions).
(n) The Company has good and sufficient title to all property described or referred to in the Company’s Mortgage dated July 1, 1923, as amended and supplemented (the “Mortgage”), subject only to the lien of the Mortgage and permitted liens as therein defined (except as to property released from the lien of the Mortgage in connection with the sale or other disposition thereof, and certain other exceptions which are not material in the aggregate).
(o) The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Offered Securities, the Common Securities and the Declaration; the Trust is duly qualified to transact business as a foreign company and is in good standing in any other jurisdiction in which such qualification is necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Trust; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus; 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; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(p) At the Closing Date, the Preferred Securities will have been duly authorized for issuance and sale by the Trust and, when issued and delivered against payment of the consideration therefor as provided herein, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the Trust, and will be entitled to the benefits of the Declaration; the issuance of the Preferred Securities is not subject to preemptive or other similar rights of any securityholder of the Company or the Trust; and (subject to the terms of the Declaration) holders of Preferred Securities will be entitled to the same limitation of personal liability under Delaware law as extended to stockholders of private corporations for profit organized under the Delaware General Corporation Law; provided, that the holders of the Preferred Securities may be obligated, pursuant to the Declaration, to
(i) provide indemnity and/or security in connection with, and pay taxes or governmental charges arising from, transfers or exchanges of Preferred Securities certificates and the issuance of replacement Preferred Securities certificates and (ii) provide security and indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and remedies under the Declaration.
(q) The Preferred Securities Guarantee, including the Guarantee, has been duly authorized by the Company; at the Closing Date, the Preferred Securities Guarantee will have been duly executed and delivered by the Company and, assuming due authorization, execution and delivery of the Preferred Securities Guarantee by the Guarantee Trustee, will constitute a legal, valid, binding instrument, enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(r) The Common Securities have been duly authorized by the Trust and, when issued and 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 Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust; the issuance of the Common Securities is not subject to preemptive or other similar rights; 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, mortgage, pledge, lien, encumbrance, claim or equity.
(s) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a legal, valid, binding instrument, enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(t) The issuance and sale of the Subordinated Notes have been duly authorized by the Company 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 the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); and the Subordinated Notes will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(u) The Trust is not, and after giving effect to the offering and sale of the Preferred Securities, will not be, an “investment company” or an entity “controlled” by an investment company, as such terms are defined in the Investment Company Act of 1940, as amended.
(v) Each of the Administrative Trustees of the Trust is an employee of the Company or an affiliate of the Company and has been duly authorized by the Company to execute and deliver the Declaration; the Declaration has been duly executed and delivered by the Administrative Trustees and is a legal, valid, binding obligation of each Administrative Trustee, enforceable against such Administrative Trustee in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(x) Except for changes contemplated by the Prospectus, the authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus.
(y) The descriptions in the Prospectus of this Agreement, the Declaration, the Preferred Securities, the Preferred Securities Guarantee, the Common Securities, the Indenture and the Guarantee.
(c) The consummation Subordinated Notes fairly summarize the matters therein described. Any certificate signed by any officer of the transactions herein contemplated Company and delivered to you or to counsel for the fulfillment Underwriters in connection with the offering of the terms hereof will not result in Offered Securities shall be deemed a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which representation and warranty by the Company is now a partyto each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement
Representations and Warranties of the Offerors. The Offerors jointly and severally represent and warrant to to, and agree with, the several Underwriters that:
(a) The Offerors have filed with the Securities and Exchange Commission (the "Commission") a shelf registration statement on Form S-3, including a prospectus, on November , 1995 S-3 (Registration Nos. 33-__________ 333-99363 and 33________333-99363-01) for the registration of $___,000,000 aggregate liquidation relating to (i) debt securities, first mortgage bonds and cumulative preference amount stock of the Trust's Preferred Securities Company and (ii) trust preferred securities of the Trust and related guarantees of the Company (collectively, the "Preferred Registered Securities"), a like principal amount of Debentures which include the Securities, and the Guarantee offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"), and have filed such amendments thereto as may have been required to the date hereof. Such registration statement, as so amended, has been declared effective by the Commission. Such registration statement ("registration statement Nos. 33-________ and 33_______") was declared effective the prospectus relating to the sale of the Registered Securities by the Commission on . References herein to Company or the term "Registration Statement" as of any date shall be deemed to refer to registration statement Nos. 33-________ and 33-___________, as amended or supplemented to such dateTrust constituting a part thereof, including all documents incorporated therein by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"). References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus forming a part of registration statement Nos. 33-________ and 33- ___________reference, as from time to time amended or supplemented as of such date, including all Incorporated Documents as of such date. References herein pursuant to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Nos. 33-________ and 33-___________ was declared effective Act or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter defined. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a date prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are referred to herein as the "Registration Statement," and the prospectus relating to the Registered Securities, including all documents incorporated therein by reference, as from time to time amended or supplemented pursuant to the Act or the Exchange Act, including by the Prospectus Supplement (as defined below), is referred to herein as the "Prospectus"; provided, however, that a supplement to the Prospectus relating to an offering of any Registered Securities, other than the Securities, shall be deemed to have supplemented the Prospectus only with respect to the offering of the other Registered Securities to which it relates. All documents filed by the Company with the Commission pursuant to the Exchange Act and incorporated by reference in the Registration Statement or the Prospectus, as aforesaid, are hereinafter referred to as the "Incorporated Documents."
(b) The Registration Statement, the Prospectus and the Indenture, at the time the Registration Statement became effective complied, as of the date hereof comply and as of the Closing Date (as hereinafter defined) will comply, in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission under such Acts; the Incorporated Documents, as of their respective dates of filing with the Commission, complied and will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the Registration Statement and any amendment thereof (including the filing of any annual report on Form 10-K), andat the time it became effective, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided and the Prospectus, at the time the Registration Statement became effective did not, as of the date hereof does not and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing representations and warranties in this paragraph (bSection 1(b) shall not apply to (i) that part of the Registration Statement which constitutes the Statements of Eligibility and Qualification (Forms T-1 and T-2) under the Trust Indenture Act or (ii) statements in or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of from the Registration Statement or the Prospectus or to any statements made in or omissions from reliance upon and in conformity with the Statement of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of the trustee under each of the Trust Agreement, the Indenture and the GuaranteeProvided Statements (as defined below).
(c) PricewaterhouseCoopers LLP, the accountants who certified certain of the financial statements included or incorporated by reference in the Prospectus, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by reference in the Prospectus present fairly in all material respects the financial position, results of operations and cash flows of the Company at the respective dates and for the respective periods specified and, except as otherwise stated in the Prospectus, such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved. Neither the Company nor the Trust has any material contingent obligation which is not disclosed in the Prospectus.
(e) Except as set forth in or contemplated by the Prospectus, no material transaction has been entered into by the Company (otherwise than in the ordinary course of business) or the Trust and no materially adverse change has occurred in the condition, financial or otherwise, of the Company or the Trust, in each case since the respective dates as of which information is given in the Prospectus.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Illinois with corporate power and authority to own its properties and conduct its business as described in the Prospectus.
(g) Each significant subsidiary of the Company, as defined in Rule 1-02 of Regulation S-X of the Commission (each a "Significant Subsidiary"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly and validly issued and is fully paid and non-assessable; and all of the capital stock of each Significant Subsidiary is owned by the Company free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any Significant Subsidiary is in violation of its articles or certificate of incorporation; the Trust is not in violation of the Declaration or its certificate of trust filed with the State of Delaware on September 5, 2002 (the "Certificate of 3 Trust"); none of the Company, any Significant Subsidiary or the Trust is in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any mortgage or any material contract, lease, note or other instrument to which the Company, any Significant Subsidiary or the Trust is a party or by which any of them may be bound, nor is any of them materially in violation of any law, administrative regulation or administrative, arbitration or court order to which it is subject or bound, except in each case to such extent as may be set forth in the Prospectus; and the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in conflict with or constitute a breach of any of the terms or provisions of, or constitute a default under, the articles of incorporation or by-laws of the Company, the Declaration or Certificate of Trust or any indenture, mortgage, deed of trust contract, lease, note or other agreement or instrument to which the Company, any Significant Subsidiary or the Trust is a party or by which the Company, any Significant Subsidiary or the Trust may be bound, or any law, administrative regulation or administrative, arbitration or court order to which it is subject or bound.
(i) The Company has filed with the Illinois Commerce Commission (the "ICC") a petition with respect to the issuance and sale of the Securities, the purchase of the Common Securities from the Trust and the Company's participation in the transactions otherwise contemplated by this Agreement or otherwise described in the Prospectus, and the ICC has issued its order authorizing and approving such transactions. No consent of or approval by any other public board or body or administrative agency, federal or state, is now necessary to authorize the issuance and sale of the Securities, except as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Offered Securities by the Underwriters in the manner contemplated herein and in the Prospectus.
(j) There is no pending or threatened suit or proceeding before any court or governmental agency, authority or body or any arbitration involving the Company, any of its Significant Subsidiaries or the Trust required to be disclosed in the Prospectus which is not adequately disclosed in the Prospectus.
(k) This Agreement has been duly authorized, executed and delivered by each of the Offerors.
(l) The Declaration has been duly authorized by the necessary corporate action of the Offerors and, at the Closing Date, will have been duly executed and delivered by the Company and the Trustees, and assuming due authorization, execution and delivery of the Declaration by the Property Trustee and the Delaware Trustee, the Declaration will, at the Closing Date, constitute a partylegal, valid, binding instrument enforceable against the Company, the Trust and the Trustees in accordance with its terms, (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity).
(m) The franchise granted to the Company by the City Council of the City of Chicago under an ordinance effective January 1, 1992, is valid and subsisting and duly authorizes the Company to engage in the electric utility business conducted by it in such City; and the several franchises of the Company outside the City of Chicago are valid and subsisting and authorize the Company to carry on its utility business in the several communities, capable of granting franchises, located in the territory served by the Company outside the City of Chicago (with immaterial exceptions).
(n) The Company has good and sufficient title to all property described or referred to in the Company's Mortgage dated July 1, 1923, as amended and supplemented (the "Mortgage"), subject only to the lien of the Mortgage and permitted liens as therein defined (except as to property released from the lien of the Mortgage in connection with the sale or other disposition thereof, and certain other exceptions which are not material in the aggregate).
(o) The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Offered Securities, the Common Securities and the Declaration; the Trust is duly qualified to transact business as a foreign company and is in good standing in any other jurisdiction in which such qualification is necessary, except to the extent that the failure to so qualify or be in good standing would not have a material adverse effect on the Trust; the Trust is not a party to or otherwise bound by any agreement other than those described in the Prospectus; 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; and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(p) At the Closing Date, the Preferred Securities will have been duly authorized for issuance and sale by the Trust and, when issued and delivered against payment of the consideration therefor as provided herein, will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial interests in the Trust, and will be entitled to the benefits of the Declaration; the issuance of the Preferred Securities is not subject to preemptive or other similar rights of any securityholder of the Company or the Trust; and (subject to the terms of the Declaration) holders of Preferred Securities will be entitled to the same limitation of personal liability under Delaware law as extended to stockholders of private corporations for profit organized under the Delaware General Corporation Law; provided, that the holders of the Preferred Securities may be obligated, pursuant to the Declaration, to (i) provide indemnity and/or security in connection with, and pay taxes or governmental charges arising from, transfers or exchanges of Preferred Securities certificates and the issuance of replacement Preferred Securities certificates and (ii) provide security and indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and remedies under the Declaration.
(q) The Preferred Securities Guarantee, including the Guarantee, has been duly authorized by the Company; at the Closing Date, the Preferred Securities Guarantee will have been duly executed and delivered by the Company and, assuming due authorization, execution and delivery of the Preferred Securities Guarantee by the Guarantee Trustee, will constitute a legal, valid, binding instrument, enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity).
(r) The Common Securities have been duly authorized by the Trust and, when issued and 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 Declaration) fully paid and non-assessable undivided beneficial interests in the assets of the Trust; the issuance of the Common Securities is not subject to preemptive or other similar rights; 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, mortgage, pledge, lien, encumbrance, claim or equity.
(s) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a legal, valid, binding instrument, enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity).
(t) The issuance and sale of the Subordinated Notes have been duly authorized by the Company 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 the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity); and the Subordinated Notes will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(u) The Trust is not, and after giving effect to the offering and sale of the Preferred Securities, will not be, an "investment company" or an entity "controlled" by an investment company, as such terms are defined in the Investment Company Act of 1940, as amended.
(v) Each of the Administrative Trustees of the Trust is an employee of the Company or an affiliate of the Company and has been duly authorized by the Company to execute and deliver the Declaration; the Declaration has been duly executed and delivered by the Administrative Trustees and is a legal, valid, binding obligation of each Administrative Trustee, enforceable against such Administrative Trustee in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors' rights ge
Appears in 1 contract
Representations and Warranties of the Offerors. The Offerors represent and warrant to the several Underwriters that:
(a) The Offerors have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3S-1, including a prospectus, on November , 1995 (Registration Nos. 33-__________ and 33(Registration Nos. 333-________, 333-______-01, 333-______-02 and 333-______-03) for the registration of $___,000,000 aggregate liquidation preference amount of the Trust's Preferred Securities ("Preferred Securities"), a like principal amount of Debentures and the Guarantee under the Securities Act of 1933, as amended (the "Securities Act")) of $______ aggregate amount of Offered Securities. Such registration statement ("registration statement Nos. 33-was declared effective by the Commission on ________ and 33_______") was declared effective by the Commission on . References herein to the term "Registration Statement" as of any date shall be deemed to refer to registration statement Registration Statement Nos. 33-333-________ , 333-______-01, 333-______-02 and 33-___________333-______-03, as amended or supplemented to such date, including all documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"). References ; references herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus prospectus, including any preliminary prospectus, forming a part of registration statement Nos. 33-________ and 33- ___________, as amended or supplemented as of such date, including all Incorporated Documents as of such datethe Registration Statement. References herein to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Nos. 33-________ and 33-___________ the Registration Statement or any post-effective amendment to the Registration Statement was declared effective or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter definedeffective. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus on or after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a date prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture TXU Funding Indenture, the Trust Guarantee, the Partnership Guarantee and the Guarantee Other Debenture Guarantees will fully comply as to form in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, with the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules and regulations of the Commission thereunder, and, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon information furnished in writing to the Company Offerors by, or on behalf of, any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or to any statements in or omissions from the Statement Statements of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of filed as exhibits to the trustee under each of the Trust Agreement, the Indenture and the GuaranteeRegistration Statement.
(c) The execution and delivery of this Agreement by each of the Offerors, and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof by each of the Offerors will not result in a material breach of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust trust, charter, by-laws or other organizational documents or any other agreement or instrument to which any of the Company Offerors is now a partyparty and which is material to the respective Offeror and its subsidiaries, taken as a whole.
(d) Each of the Offerors and each direct and indirect material subsidiary of the Company has been created, formed or incorporated, as the case may be, and is validly existing and, where applicable, in good standing under the laws of the jurisdiction of its creation, formation or incorporation, as the case may be, has the power and authority to own, lease and operate its properties and to conduct its business as currently conducted and as set forth in or contemplated by the Prospectus, and is qualified to transact business and is in good standing in each jurisdiction in which such qualification and good standing is required, whether by reason of the ownership or leasing of property or the conduct of business, except, with respect to each direct and indirect material subsidiary of the Company other than the Offerors, where the failure to so qualify or be in good standing would not have a material adverse effect on the business, property or financial condition of the Company and its subsidiaries, considered as a whole. The Trust has the trust power and authority to issue, and perform its obligations under, the TOPrS and purchase the Partnership Preferred Securities, as described in the Prospectus. The Trust is not a party to or otherwise bound by any material agreements other than those described in the Prospectus; [and the Trust is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles]. The Partnership has the partnership power and authority to issue and perform its obligations under the Partnership Preferred Securities and to lend the proceeds thereof to certain subsidiaries of the Company, as described in the Prospectus. The Partnership is not a party to or otherwise bound by any material agreements other than those described in the Registration Statement and the Prospectus[; and the Partnership is and will be treated as a consolidated subsidiary of the Company pursuant to generally accepted accounting principles].
(e) None of the Company, TXU Eastern Funding, the Partnership or the Trust is, or after giving effect to the issuance and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus will be, an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended.
(f) The Company and each of its material subsidiaries (i) is in compliance with any and all applicable foreign, national, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(g) The Company and each of its material subsidiaries has good title to all real property and other properties owned by it (other than properties which are not material to the financial condition or the conduct of the business of the Company and its subsidiaries, taken as a whole), in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate, materially adversely affect the value of such property and do not materially interfere with the use made and proposed to be made of such property; and all of the leases and subleases material to the business of the Company and its subsidiaries, taken as a whole, and under which the Company or any of its material subsidiaries holds properties described in the Prospectus are in full force and effect, and the Company has no notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any material subsidiary of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or any material subsidiary of the Company to the continued possession of the leased or subleased properties under any such lease or sublease.
(h) The Company and each of its material subsidiaries has filed all national, state, local and foreign tax returns which have been required to be filed and has paid all taxes shown thereon and all assessments received by them or any of them to the extent that such taxes have become due and are not being contested in good faith, except where the failure to have made such filings or to have paid such taxes and assessments would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and there is no tax deficiency which has been asserted or, to the knowledge of the Company, threatened against the Company or any of its material subsidiaries which would be expected to have a material adverse effect on, as the case may be, the Company and its subsidiaries, taken as a whole.
(i) The Company and each of its material subsidiaries owns, possesses or has obtained all licenses, permits, certificates, consents, orders, approvals and other authorizations (collectively "Authorizations") from, all national, state, local and other governmental authorities (including foreign regulatory agencies), all self-regulatory organizations and all courts and other tribunals, domestic or foreign, necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof, except where the failure to own, possess or obtain such Authorizations or to have made such declarations and filings would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; to the knowledge of the Company and its material subsidiaries, each Authorization is in full force and effect, except where the failure of such Authorization to be in full force and effect would not be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; none of the Company or its material subsidiaries has received any actual notice of any proceeding relating to revocation or modification of any such Authorization, except as described in the Prospectus and except as would not, if the subject of an unfavorable decision, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(j) No stamp or other issuance or transfer taxes or duties are payable by or on behalf of the Underwriters in the United Kingdom or the United States or any political subdivision or taxing authority thereof or therein on (i) the authorization, issue or delivery of the Offered Securities or (ii) assuming all of the following transactions take place outside the United Kingdom, the purchase by the Underwriters of the TOPrS, the sale and delivery by the Underwriters of the TOPrS, the execution and delivery of this Agreement, the Indentures, the Trust Agreement, the Partnership Agreement, the Trust Guarantee and the Partnership Guarantee or the consummation of the transactions contemplated by this Agreement.
(k) No exchange control authorization or any other authorization, approval, consent or license of any governmental authority or agency of or in the United Kingdom is required for the payment by the Offerors of any amounts in United States dollars pursuant to the terms of the Offered Securities.
(l) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Offerors of their respective obligations hereunder, in connection with the offering, issuance or sale of the Offered Securities or the consummation of the transactions contemplated by this Agreement.
(m) The Offerors and their respective obligations under this Agreement, the Offered Securities, the Trust Agreement, the Partnership Agreement and the Indentures are subject to civil and commercial law and to suit and none of the Offerors nor any of their respective properties, assets or revenues has, in the United Kingdom or any political subdivision thereof or in the United States or any political subdivision thereof, any right of immunity from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of any court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such jurisdiction, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the issuance of the Offered Securities; and, to the extent that any of the Offerors or any of their respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any jurisdiction, each of the Offerors has effectively waived such right and consented to such relief and enforcement pursuant to Section ___ of this Agreement; nothing in this clause (m) shall be deemed to waive any defense (other than any such immunity) available to any Offeror.
(n) The Trust Agreement has been duly qualified under the Trust Indenture Act.
(o) The TOPrS have been duly authorized by the Trust Agreement and, when issued and sold in accordance with the Trust Agreement, will be fully paid and nonassessable undivided beneficial interests in the assets of the Trust (subject to the limitations set forth in this paragraph below); the issuance of the TOPrS is not subject to preemptive or other similar rights; and holders of TOPrS will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware (provided, that, the holders of TOPrS may be obligated, pursuant to the Trust Agreement, to (i) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of TOPrS certificates and the issuance of replacement TOPrS certificates, and (ii) provide security or indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and powers under the Trust Agreement).
(p) Each of the Administrative Trustees of the Trust is an employee of TXU Services; at the Closing Date, the Trust Agreement will have been duly executed and delivered by the Administrative Trustees and, when executed and delivered by TXU Services, the Property Trustee and the Delaware Trustee, will be a valid and binding obligation of each Administrative Trustee enforceable against such Administrative Trustee in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity and the effect of applicable public policy on the enforceability of provisions relating to contribution and indemnification.
(q) The Partnership Agreement has been duly authorized by the General Partner and, at the Closing Date, will have been duly executed and delivered by the General Partner and will be a legal, valid and binding obligation of the General Partner enforceable against the General Partner in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership, moratorium and other laws affecting the rights and remedies of creditors generally and of general principles of equity and the effect of applicable public policy on the enforceability of provisions relating to contribution and indemnification.
(r) The Partnership Preferred Secur
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Representations and Warranties of the Offerors. The Offerors represent and warrant to the several Underwriters that:
(a) The Offerors have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including a prospectus, on November , 1995 1998 (Registration Nos. 33-__________ 333- and 33________---------- ------------ 333- -01) for the registration of $___,000,000 aggregate liquidation preference amount of the Trust's Preferred Securities ("Preferred Securities"), a like principal amount of Debentures and the Guarantee under the ---------------- Securities Act of 1933, as amended (the "Securities Act")) of $400,000,000 aggregate amount of (i) the Company's unsecured debt securities and (ii) the preferred trust securities ("Trust Securities") of the Trust, an equal principal amount of the Company's junior subordinated debentures and guarantees and other obligations of the Company in respect of the Trust Securities. Such registration statement ("registration statement Registration Statement Nos. 33-________ 333- and 33_______333- -------- --------- -01") was declared effective by the Commission on , 1998. References herein to the term ---------- "Registration Statement" as of any date shall be deemed to refer to registration statement Registration Statement Nos. 33-________ 333- and 33-___________333- --------- -01, as amended or supplemented to such date, ---------- including all documents incorporated by reference therein as of such date pursuant to Item 12 of Form S-3 ("Incorporated Documents"); provided that if the Company files a registration statement with the Commission pursuant to Section 462(b) of the Securities Act (the "Rule 462(b) Registration Statement"), then after such filing, all references to "Registration Statement" shall be deemed to include the Rule 462(b) Registration Statement. References herein to the term "Prospectus" as of any given date shall be deemed to refer to the prospectus prospectus, including any preliminary prospectus, forming a part of registration statement Registration Statement Nos. 33-________ 333- and 33- ___________333- -01, as amended --------- -------- or supplemented as of such date, including all Incorporated Documents as of such datedate and including any prospectus supplement relating to the Preferred Trust Securities. References herein to the term "Effective Date" shall be deemed to refer to the later of the time and date registration statement Registration Statement Nos. 33-________ 333- and 33-___________ 333- --------- ---------- -01, any post-effective amendment to Registration Statement Nos. 333- and 333- -01 or any Rule --------- ------------ 462(b) Registration Statement was declared effective or the time and date of the filing thereafter of the Company's most recent Annual Report on Form 10-K if such filing is made prior to the Closing Date, as hereinafter defined. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus on or after the date of this Agreement and prior to the Closing Date, as hereinafter defined, without prior notice to the Underwriters, or to which Counsel for the Underwriters shall reasonably object in writing. For the purposes of this Agreement, any Incorporated Document filed with the Commission on a or after the date of this Agreement and prior to the Closing Date, as hereinafter defined, shall be deemed an amendment or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the Prospectus fully complied and at the Closing Date, as hereinafter defined, the Registration Statement, the Prospectus, the Trust Agreement, the Indenture and the Guarantee will fully comply in all material respects with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder; on the Effective Date the Registration Statement did not, and at the Closing Date, as hereinafter defined, the Registration Statement will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; on the Effective Date the Prospectus did not, and at the Closing Date, as hereinafter defined, and on the date it is filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations of the Securities Act ("Rule 424"), the Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact neces- sary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and on said dates the Incorporated Documents, taken together as a whole, fully complied or will comply in all material respects with the applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules and regulations of the Commission thereunder, and, when read together with the Prospectus on said dates did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon information furnished in writing to the Company by, or on behalf of, any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or to any statements in or omissions from the Statement of Eligibility and Qualification under the Trust Indenture Act, or amendments thereto, of the trustee under each of the Trust Agreement, the Indenture and the Guarantee.
(c) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is now a party.
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