Representations and Warranties of the Trust and the Company. The Trust and the Company, jointly and severally, represent and warrant to each of the Underwriters that: (a) On the date the Registration Statement became effective (the "Effective Date") the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and at the Delivery Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Act and the Exchange Act. The Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the other dates referred to above, neither the Registration Statement nor the Prospectus, nor any amendment thereof or supplement thereto, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement or any amendment thereto or pursuant to Rule 424(a) of the Act) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with the applicable provisions of the Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company and the Trust make no warranty or representation with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning the Underwriters and furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use in the Registration Statement or the Prospectus. (b) The documents 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 Exchange Act, and none of such documents, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Delivery Date, 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 made therein not misleading. (c) As of the date of this Agreement, the Company has an authorized capitalization as set forth under the heading entitled "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the Delivery Date the Company shall have an authorized capitalization as set forth under the heading entitled "As Adjusted" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the BHC Act); the Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana, with full power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver the relevant Operative Documents and to issue and sell the Debentures and to issue Shares upon conversion of the Capital Securities as herein contemplated. (d) The Company and each of its subsidiaries (the "Subsidiaries") are duly qualified or licensed by in each jurisdiction in which they conduct their respective businesses and in which the failure, individually or in the aggregate, to be so licensed or qualified could have a material adverse effect on the operations, business or condition of the Company and its Subsidiaries, taken as a whole; and the Company and each of its Subsidiaries are in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions; (e) The deposit accounts of the Company's bank and savings association subsidiaries are insured by the Bank Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC") or the Savings Association Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination of such insurance are pending or threatened. (f) Neither the Company nor any of its Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter or by-laws or (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound (except, in the case of clause (ii), where such breach or default does not have a material adverse effect on the operations, business or condition of the Company and its Subsidiaries, taken as a whole), and the execution, delivery and performance of the Operative Documents by the Company and the Trust and the issuance of the Capital Securities, the Debentures and the Shares and consummation of the transactions contemplated hereby and thereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), any provisions of the charter or by-laws of the Company or any of its Subsidiaries or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries. (g) The Capital Securities and the Common Securities have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein and in the Prospectus, will be duly and validly issued, fully paid and non-assessable; and the Capital Securities and the Common Securities, when issued and delivered, will conform in all material respects to the descriptions thereof contained in the Prospectus; the Shares initially issuable upon conversion of the Capital Securities have been duly authorized and validly reserved for issuance upon conversion of the Capital Securities and are free of statutory and contractual preemptive rights and are sufficient in number to meet current conversion requirements, and such Shares, when so issued upon such conversion in accordance with the terms of the Indenture and Trust Agreement, will be duly and validly issued and fully paid and nonassessable, with no personal liability attaching to the ownership thereof. (h) The Indenture has been duly authorized, and when duly executed by the proper officers of the Company (assuming due execution and delivery by the Indenture Trustee) and delivered by the Company will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures have been duly authorized and, when duly executed, authenticated, issued and delivered as contemplated in the Indenture, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus. (i) The Trust has been duly created and is validly existing as a statutory business trust in good standing under the Delaware Act with the trust power and authority to own property and conduct its business as described in the Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement as described in the Prospectus; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, the Amended and Restated Trust Agreement (the " Trust Agreement") among the Company, The Bank of New York, as property trustee (the "Property Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee") and the individuals named therein as the Administrative Trustees (the "Administrative Trustees", and together with the Property Trustee and the Delaware Trustees, the "Trustees"), and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; and the Trust is not a party to or subject to any action, suit or proceeding of any nature. (j) The Trust Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company and the Trustees, will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and will conform in all material respects to the description thereof contained in the Prospectus. Each of the Administrative Trustees is an employee of the Company and has been duly authorized by the Company to serve in such capacity and to execute and deliver the Trust Agreement. (k) The Guarantee Agreement has been duly authorized and, when duly executed and delivered by the proper officers of the Company and the Guarantee Trustee, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Guarantee Agreement, when executed and delivered, will conform in all material respects to the description thereof contained in the Prospectus. (l) This Agreement has been duly authorized, executed and delivered by each of the Company and the Trust. (m) The capital stock of the Company, including the Shares, conform in all material respects to the description thereof contained in the Registration Statement and Prospectus. (n) No approval, authorization, consent or order of or filing with any national, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance by the Company and the Trust of the Operative Documents or the issuance and sale of the Capital Securities and the Shares as contemplated hereby other than as may be required under the Act and the Exchange Act and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Capital Securities and the Shares are being offered by the Underwriters. (o) KPMG Peat Marwick LLP, whose reports on the consolidated financial statements of the Company and its Subsidiaries are filed with the Commission as part of the Registration Statement and Prospectus, are independent public accountants as required by the Act and the applicable published rules and regulations thereunder; (p) Each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its respective business; neither the Company nor any of its Subsidiaries is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of its Subsidiaries the effect of which could have a material adverse effect on the Company and its Subsidiaries taken as a whole. (q) All legal or governmental proceedings, contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required. (r) There are no actions, suits or proceedings pending or threatened against the Company or any of its Subsidiaries or any of their respective properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a material adverse effect on the business, condition, prospects or property of the Company and its Subsidiaries taken as a whole. (s) The audited financial statements included in the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and the consolidated results of operations and changes in financial position of the Company and its Subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved. (t) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, and except as may be otherwise stated in the Registration Statement or Prospectus, there has not been (A) any material and unfavorable change, financial or otherwise, in the business, properties, prospects, regulatory environment, results of operations or condition (financial or otherwise), present or prospective, of the Company and its Subsidiaries taken as a whole, (B) any transaction, which is material to the Company and its Subsidiaries taken as a whole, contemplated or entered into by the Company or either of its Subsidiaries or (C) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Trust and the Company. The ----------------------------------------------------------- Trust and the Company, jointly and severally, represent and warrant to each of the Underwriters Underwriter that:
(a) On No order preventing or suspending the date use of any preliminary prospectus has been issued by the Commission, and each preliminary prospectus filed as part of the Registration Statement became as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through ▇.▇. ▇▇▇▇▇▇ Securities Inc. expressly for use therein;
(b) The Registration Statement has been declared effective (by the "Effective Date") Commission under the Securities Act; no stop order suspending the effectiveness of the Registration Statement compliedhas been issued and no proceeding for that purpose has been instituted or, and on to the date knowledge of the ProspectusCompany, on threatened by the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission Commission; and at the Delivery Date, the Registration Statement and the Prospectus (and as amended or supplemented if the Company shall have furnished any amendment thereof amendments or supplement supplements thereto) comply, or will comply, as the case may be, in all material respects, respects with the applicable provisions of the Securities Act and the Exchange Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Trust Indenture Act. The Registration Statement did "), and do not and will not, as of the Effective Dateapplicable effective date as to the Registration Statement and any amendment thereto and as of the date of the Prospectus and any amendment or supplement thereto, contain any untrue statement of a material fact or omit to state any 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; , and on the other dates referred to above, neither the Registration Statement nor the Prospectus, nor any amendment thereof or supplement thereto, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement or any amendment thereto or pursuant to Rule 424(a) of the Act) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with supplemented, if applicable, at the applicable provisions of the Act and did Closing Date will not contain any untrue statement of a material fact or omit to state any 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, except that the Company foregoing representations and warranties shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust make no warranty Indenture Act of any trustee (each a "Form T-1"), and (ii) statements or representation with respect to any statement contained omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with information concerning furnished to the Underwriters and furnished Company in writing by or on behalf of any Underwriter through you to the Company ▇.▇. ▇▇▇▇▇▇ Securities Inc. expressly for use in the Registration Statement or the Prospectus.therein;
(bc) The documents incorporated by reference in the Registration Statement and the Prospectus, when they were filed with the Commission, Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Delivery Date, 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 made therein therein, in the light of the circumstances under which they were made, not misleading.; and any further documents so filed and incorporated by reference in the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(cd) As of the date of this Agreement, the Company has an authorized capitalization as set forth under the heading entitled "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" and, as of the Delivery Date the Company shall have an authorized capitalization as set forth under the heading entitled "As Adjusted" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the The Company is a corporation duly registered as a bank holding company under the Bank Holding Company Act of 1956organized, as amended (the BHC Act); the Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of Indiana, Delaware with full corporate power and corporate authority under such laws to own own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver the relevant Operative Documents and to issue and sell the Debentures and to issue Shares upon conversion of the Capital Securities as herein contemplated.
(d) The Company and each of its subsidiaries (the "Subsidiaries") are duly qualified or licensed by in each jurisdiction in which they conduct their respective businesses and in which the failure, individually or in the aggregate, to be so licensed or qualified could have a material adverse effect on the operations, business or condition of the Company and its Subsidiaries, taken as a whole; and the Company is duly qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which it owns or leases property of its Subsidiaries are in compliance in all material respects with the lawsa nature, ordersor transacts business of a type, rulesthat would make such qualification necessary, regulations and directives issued or administered by such jurisdictions;
(e) The deposit accounts of the Company's bank and savings association subsidiaries are insured by the Bank Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC") or the Savings Association Insurance Fund of the FDIC except to the fullest extent permitted by law and that the rules and regulations of the FDIC, and no proceedings for the termination of such insurance are pending failure to so qualify or threatened.
(f) Neither the Company nor any of its Subsidiaries is be in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both good standing would constitute a breach of, or default under), (i) its respective charter or by-laws or (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound (except, in the case of clause (ii), where such breach or default does not have a material adverse effect on the operationsCompany and its subsidiaries, considered as one enterprise.
(e) Each of Con-Way Transportation Services, Inc., ▇▇▇▇▇ Worldwide Airlines, Inc. ("EWA") and Menlo Logistics, Inc. (each individually, a "Significant Subsidiary" and collectively, the "Significant Subsidiaries") is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with corporate power and corporate authority under such laws to own, lease and operate its properties and conduct its business; and each Significant Subsidiary is duly qualified to transact business as a foreign corporation and is in good standing in each other jurisdiction in which it owns or condition leases property of a nature, or transacts business of a type, that would make such qualification 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 Company and its Subsidiariessubsidiaries, taken considered as a whole), and the execution, delivery and performance one enterprise. All of the Operative Documents by the Company and the Trust and the issuance outstanding shares of the Capital Securities, the Debentures and the Shares and consummation capital stock of the transactions contemplated hereby and thereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), any provisions of the charter or by-laws of the Company or any of its Subsidiaries or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries.
(g) The Capital Securities and the Common Securities have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein and in the Prospectus, will be duly and validly issued, fully paid and non-assessable; and the Capital Securities and the Common Securities, when issued and delivered, will conform in all material respects to the descriptions thereof contained in the Prospectus; the Shares initially issuable upon conversion of the Capital Securities each Significant Subsidiary have been duly authorized and validly reserved issued and are fully paid and non-assessable and are owned by the Company (except for issuance upon conversion directors' qualifying shares), free and clear of any pledge, lien, security interest, charge, claim, equity, encumbrance or adverse interest of any kind (except for restrictions on transfer arising under federal or state securities or blue sky laws).
(f) As of the Capital Closing Date, the Trust Securities will have been duly authorized by the Declaration and (x) when the Securities are free of statutory duly executed, authenticated and contractual preemptive rights and are sufficient in number to meet current conversion requirements, and such Shares, when so issued upon such conversion in accordance with the terms of the Indenture Declaration and Trust delivered to and paid for by the Underwriters in accordance with the terms of this Agreement and (y) the Common Securities, when duly executed and issued in accordance with the terms of the Declaration and delivered to and paid for by the Company as provided in the Common Securities Purchase Agreement, such Trust Securities will be duly and validly issued and (subject to the terms of and except as provided in the Declaration) will be fully paid and nonassessablenonassessable undivided beneficial interests in the assets of the Trust, with no not subject to any preemptive or similar rights, and will be convertible into shares of Common Stock as provided in the Declaration and the Indenture. Holders of Securities will be entitled to the same limitation of personal liability attaching extended to stockholders of private corporations for profit organized under the ownership thereofGeneral Corporation Law of the State of Delaware (the "DGCL"). As of the Closing Date, all of the issued and outstanding Common Securities will be directly owned by the Company free and clear of any pledge, lien, security interest, charge, claim, equity, encumbrance or adverse interest of any kind, except for restrictions on transfer arising under the Declaration or federal or state securities or blue sky laws.
(hg) The Indenture has As of the Closing Date, the Declaration will have been duly authorized, and when duly executed by the proper officers of the Company (assuming due execution and delivery by the Indenture Trustee) and delivered by the Company will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures have been duly authorized and, when duly executed, authenticated, issued and delivered as contemplated in the Indenture, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus.
(i) The Trust has been duly created and is validly existing as a statutory business trust in good standing under the Delaware Act with the trust power and authority to own property and conduct its business as described in the Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement as described in the Prospectus; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, the Amended and Restated Trust Agreement (the " Trust Agreement") among the Company, The Bank of New York, as property trustee (the "Property Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee") and the individuals named therein as the Administrative Trustees (the "Administrative Trustees", and together with the Property Trustee and the Delaware Trustees, the "Trustees"), and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; and the Trust is not a party to or subject to any action, suit or proceeding of any nature.
(j) The Trust Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company and the Trustees, will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, reorganization, moratorium and fraudulent transfer or other similar laws relating to or affecting the creditors' rights of creditors generally, generally or by general equitable principles principals and except as rights to indemnification and contribution may be limited by applicable law or public policy.
(whether considered in a proceeding in equity or at lawh) and an implied covenant of good faith and fair dealing, and will conform in all material respects to the description thereof contained in the Prospectus. Each of the Administrative Trustees is an employee of the Company and The Trust has been duly authorized created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor trust" for Federal income tax purposes under existing law, has the business trust power and business trust authority to enter into and perform its obligations under this Agreement and the Trust Securities and the Declaration and to conduct its business as described in the Registration Statement and Prospectus, has not conducted and will conduct no business other than as permitted by the Company Declaration and is not required to serve be authorized to do business in such capacity and to execute and deliver the Trust Agreementany other jurisdiction.
(ki) The Guarantee Agreement Indenture has been duly authorized qualified under the Trust Indenture Act and, when at the Closing Date, will have been duly authorized, executed and delivered by the proper officers of the Company and the Guarantee Trustee, will constitute be a valid and legally binding agreement of the Company Company, enforceable against the Company in accordance with its terms, terms subject to the effects of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, reorganization, moratorium and fraudulent transfer or other similar laws relating to or affecting creditors' rights generally, generally or by general equitable principles (whether considered principals and except as rights to indemnification and contribution may be limited by applicable law or public policy; the Debentures have been duly authorized and when duly executed, attested and authenticated in a proceeding accordance with the provisions of the Indenture and delivered to the Trust against payment therefor as provided in equity or at law) and an implied covenant of good faith and fair dealing; and the Guarantee Debenture Purchase Agreement, when executed and delivered, will conform in all material respects be entitled to the description thereof contained in benefits of the ProspectusIndenture.
(lj) The Guarantee has been duly qualified under the Trust Indenture Act and, as of the Closing Date, assuming due authorization, execution and delivery by the Company thereunder, of the Guarantee, the Guarantee will be a valid and binding agreement of the Company, enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating or affecting creditors' rights generally or by general equitable principals and except as rights to indemnification and contribution may be limited by applicable law or public policy.
(k) This Agreement has been duly authorized, executed and delivered by each of the Company and the TrustCompany.
(ml) The Securities, the Guarantee, the Indenture and the Debentures conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus. The Company had at the date indicated in the Prospectus a duly authorized, issued and outstanding capitalization as set forth in the Prospectus under the caption "Capitalization" and such authorized capital stock of the Company, including the Shares, conform conforms as to legal matters in all material respects to the description thereof contained set forth in the Registration Statement Prospectus. All of the outstanding shares of capital stock of the Company have been duly authorized and Prospectusvalidly issued and are fully paid and non-assessable. There are no outstanding options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of Common Stock of the Company, any shares of capital stock of any subsidiary, or any such warrants, convertible securities or obligations, except as set forth in the Prospectus and except for options granted under, or contracts or commitments pursuant to, the Company's previous or currently existing stock option and other similar officer, director or employee benefit plans.
(nm) No approvalThe Company is not in violation of its charter or by-laws, authorizationthe Trust is not in violation of the Declaration and none of the Significant Subsidiaries is in violation of its charter or by-laws, consent except for any such violations which, individually and in the aggregate, would not have a material adverse effect on, with respect to the Company and the Significant Subsidiaries, the Company and its subsidiaries taken as a whole, or order with respect to the Trust, the Trust, nor is the Trust, the Company or any of the Significant Subsidiaries in default in the performance or filing observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties is subject, except for such defaults that would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of, with any nationalrespect to the Company and the Significant Subsidiaries, state the Company and its subsidiaries, considered as one enterprise, or local governmental or regulatory commissionwith respect to the Trust, board, body, authority or agency is required in connection with the Trust. The execution, delivery and performance by the Trust or the Company, as the case may be, of this Agreement, the Indenture, the Debentures, the Guarantee, the Declaration and the Securities and the compliance by the Trust or the Company, as the case may be, with all of their respective obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action (corporate or otherwise) on the part of the Trust and the Company, as the case may be, and do not and will not result in any violation of the Declaration of the Trust or charter or by-laws of the Company or any Significant Subsidiary, and do not and will not violate or conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust, the Company or any Significant Subsidiary under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Trust, the Company or any Significant Subsidiary is a party or by which it is bound or to which any of their respective properties are subject or any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Trust, the Company or any Significant Subsidiary or any of their respective properties (except for such violations, conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of, with respect to the Trust, the Trust, or with respect to the Company and the Trust Significant Subsidiaries, the Company and its subsidiaries, considered as one enterprise).
(n) No authorization, approval, consent or license of the Operative Documents any government, governmental instrumentality or the issuance and sale of the Capital Securities and the Shares as contemplated hereby court, domestic or foreign (other than as may be required under the Act and Securities Act, the Exchange Act Act, the Trust Indenture Act, and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which states and of foreign jurisdictions) is required for the Capital Securities valid authorization, issuance, sale and delivery of the Securities, for the execution, delivery or performance by the Trust or the Company, as the case may be, of this Agreement, the Indenture, the Debentures, the Guarantee, the Declaration and the Shares are being offered Securities or for the consummation by the UnderwritersCompany or the Trust, as the case may be, of the transactions contemplated hereby or thereby, except such of the foregoing as will be obtained prior to the Closing Date.
(o) KPMG Peat Marwick LLPExcept as disclosed in the Prospectus, whose reports on there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the consolidated financial statements knowledge of the Company and its Subsidiaries are filed with or the Commission as part of Trust, threatened against or affecting the Registration Statement and ProspectusTrust, are independent public accountants as required by the Act and the applicable published rules and regulations thereunder;
(p) Each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its respective business; neither the Company nor any of its Subsidiaries is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of its Subsidiaries the effect of which could have a material adverse effect on the Company and its Subsidiaries taken as a whole.
(q) All legal or governmental proceedings, contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required.
(r) There are no actions, suits or proceedings pending or threatened against the Company or any of its Subsidiaries Significant Subsidiary or any of their respective properties, at law officers or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a material adverse effect on the business, condition, prospects or property of the Company and its Subsidiaries taken Regular Trustees (as a whole.
(s) The audited financial statements included defined in the Registration Statement and the Prospectus present fairly the consolidated financial position Declaration), as applicable, in their capacity as such, in which there is a reasonable possibility of the Company and its Subsidiaries as of the dates indicated and the consolidated results of operations and changes in financial position of the Company and its Subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved.
(t) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, and except as may be otherwise stated in the Registration Statement or Prospectus, there has not been an adverse decision that would (A) result in any material and unfavorable change, financial or otherwise, adverse change in the business, properties, prospects, regulatory environment, results of operations or condition (financial or otherwise), present earnings, business affairs or prospectivebusiness prospects of, of with respect to the Trust, the Trust or, with respect to the Company and the Significant Subsidiaries, the Company and its Subsidiaries taken subsidiaries, considered as a wholeone enterprise, (B) any transactionmaterially and adversely affect the properties or assets of, which is material with respect to the Trust, the Trust or, with respect to the Company and its Subsidiaries taken as a wholethe Significant Subsidiaries, contemplated or entered into by the Company or either of its Subsidiaries or (C) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Trust and the Company. The Trust and the Company, jointly and severally, represent and warrant to each of the Underwriters Underwriter that:
8 (a) On the date the The Registration Statement became has become effective (the "Effective Date") the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and at the Delivery Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of under the Act and no stop order suspending the Exchange Act. The Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the other dates referred to above, neither the Registration Statement nor the Prospectus, nor any amendment thereof or supplement thereto, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or any amendment thereto threatened by the Commission.
(i) Each document, if any, filed or to be filed pursuant to Rule 424(a) of the Act) Exchange Act and incorporated by reference in the Prospectus complied or will comply when any amendment thereof or supplement thereto was first so filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with the applicable provisions Exchange Act, (ii) each part of the Act Registration Statement, when such part became effective, did not contain, and did each such part as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company and the Trust make no warranty or representation with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning the Underwriters and furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use in the Registration Statement or the Prospectus.
(b) The documents 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 Exchange Act, and none of such documents, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Delivery Date, 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 made therein not misleading.
, (ciii) As of the date of this Agreement, the Company has an authorized capitalization as set forth under the heading entitled "Actual" in the section of the Registration Statement and the Prospectus entitled "Capitalization" comply and, as of the Delivery Date the Company shall have an authorized capitalization as set forth under the heading entitled "As Adjusted" in the section of the Registration Statement and the Prospectus entitled "Capitalization"; all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956amended or supplemented, as amended (the BHC Act); the Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indianaif applicable, with full power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver the relevant Operative Documents and to issue and sell the Debentures and to issue Shares upon conversion of the Capital Securities as herein contemplated.
(d) The Company and each of its subsidiaries (the "Subsidiaries") are duly qualified or licensed by in each jurisdiction in which they conduct their respective businesses and in which the failure, individually or in the aggregate, to be so licensed or qualified could have a material adverse effect on the operations, business or condition of the Company and its Subsidiaries, taken as a whole; and the Company and each of its Subsidiaries are in compliance will comply in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions;
(e) The deposit accounts of the Company's bank and savings association subsidiaries are insured by the Bank Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC") or the Savings Association Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination of such insurance are pending or threatened.
(f) Neither the Company nor any of its Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under)Act, (iiv) its respective charter the Prospectus does not contain and, as amended or by-laws supplemented, if applicable, will not contain any untrue statement of a material fact or (ii) in omit to state a material fact necessary to make the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound (exceptstatements therein, in the case of clause (ii), where such breach or default does not have a material adverse effect on the operations, business or condition light of the Company circumstances under which they were made, not misleading, except that the representations and its Subsidiaries, taken as a whole), and the execution, delivery and performance of the Operative Documents by the Company and the Trust and the issuance of the Capital Securities, the Debentures and the Shares and consummation of the transactions contemplated hereby and thereby will warranties set forth in this paragraph do not conflict with, apply to statements or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), any provisions of the charter or by-laws of the Company or any of its Subsidiaries or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries.
(g) The Capital Securities and the Common Securities have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein and in the Prospectus, will be duly and validly issued, fully paid and non-assessable; and the Capital Securities and the Common Securities, when issued and delivered, will conform in all material respects to the descriptions thereof contained in the Prospectus; the Shares initially issuable upon conversion of the Capital Securities have been duly authorized and validly reserved for issuance upon conversion of the Capital Securities and are free of statutory and contractual preemptive rights and are sufficient in number to meet current conversion requirements, and such Shares, when so issued upon such conversion in accordance with the terms of the Indenture and Trust Agreement, will be duly and validly issued and fully paid and nonassessable, with no personal liability attaching to the ownership thereof.
(h) The Indenture has been duly authorized, and when duly executed by the proper officers of the Company (assuming due execution and delivery by the Indenture Trustee) and delivered by the Company will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures have been duly authorized and, when duly executed, authenticated, issued and delivered as contemplated in the Indenture, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus.
(i) The Trust has been duly created and is validly existing as a statutory business trust in good standing under the Delaware Act with the trust power and authority to own property and conduct its business as described in the Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement as described in the Prospectus; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, the Amended and Restated Trust Agreement (the " Trust Agreement") among the Company, The Bank of New York, as property trustee (the "Property Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee") and the individuals named therein as the Administrative Trustees (the "Administrative Trustees", and together with the Property Trustee and the Delaware Trustees, the "Trustees"), and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; and the Trust is not a party to or subject to any action, suit or proceeding of any nature.
(j) The Trust Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company and the Trustees, will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and will conform in all material respects to the description thereof contained in the Prospectus. Each of the Administrative Trustees is an employee of the Company and has been duly authorized by the Company to serve in such capacity and to execute and deliver the Trust Agreement.
(k) The Guarantee Agreement has been duly authorized and, when duly executed and delivered by the proper officers of the Company and the Guarantee Trustee, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Guarantee Agreement, when executed and delivered, will conform in all material respects to the description thereof contained in the Prospectus.
(l) This Agreement has been duly authorized, executed and delivered by each of the Company and the Trust.
(m) The capital stock of the Company, including the Shares, conform in all material respects to the description thereof contained in the Registration Statement and Prospectus.
(n) No approval, authorization, consent or order of or filing with any national, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance by the Company and the Trust of the Operative Documents or the issuance and sale of the Capital Securities and the Shares as contemplated hereby other than as may be required under the Act and the Exchange Act and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Capital Securities and the Shares are being offered by the Underwriters.
(o) KPMG Peat Marwick LLP, whose reports on the consolidated financial statements of the Company and its Subsidiaries are filed with the Commission as part of the Registration Statement and Prospectus, are independent public accountants as required by the Act and the applicable published rules and regulations thereunder;
(p) Each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its respective business; neither the Company nor any of its Subsidiaries is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of its Subsidiaries the effect of which could have a material adverse effect on the Company and its Subsidiaries taken as a whole.
(q) All legal or governmental proceedings, contracts or documents of a character required to be described omissions in the Registration Statement or the Prospectus or based upon information relating to be filed as an exhibit to the Registration Statement have been so described or filed as required.
(r) There are no actions, suits or proceedings pending or threatened against the Company or any of its Subsidiaries or any of their respective properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a material adverse effect on the business, condition, prospects or property of the Company and its Subsidiaries taken as a whole.
(s) The audited financial statements included in the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and the consolidated results of operations and changes in financial position of the Company and its Subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved.
(t) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, and except as may be otherwise stated in the Registration Statement or Prospectus, there has not been (A) any material and unfavorable change, financial or otherwise, in the business, properties, prospects, regulatory environment, results of operations or condition (financial or otherwise), present or prospective, of the Company and its Subsidiaries taken as a whole, (B) any transaction, which is material Underwriter furnished to the Company and its Subsidiaries taken as a whole, contemplated or entered into in writing by the Company or either of its Subsidiaries or (C) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries taken as a wholesuch Underwriter through you expressly for use therein.
Appears in 1 contract
Representations and Warranties of the Trust and the Company. (a) The Trust and the Company, jointly and severally, represent and warrant to each of the Underwriters that:
4 5 (ai) On The Trust and the date Company meet the Registration Statement became effective (requirements for use of Form S-2 under the "Effective Date") the Registration Statement complied, and on the date Securities Act. Each of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and at the Delivery Date, the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Trust or the Company, are threatened by the Commission, and any request on the part of the Commission for additional information has been complied with.
(ii) The Preliminary Prospectus and the Registration Statement comply and the Prospectus (and any amendment thereof further amendments or supplement thereto) will complysupplements thereto will, when they have become effective or are filed with the Commission, as the case may be, comply in all material respects, respects with the applicable provisions requirements of the Securities Act and the Exchange Act. The Securities Act Regulations; the Registration Statement did not, and any amendment thereto will not, in each case as of the Effective Dateapplicable effective date, contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the other dates referred to above, neither the Registration Statement nor the Prospectus, nor any amendment thereof or supplement thereto, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement or any amendment thereto or pursuant to Rule 424(a) of the Act) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with the applicable provisions of the Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company and the Trust make no warranty or representation with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning the Underwriters and furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use in the Registration Statement or the Prospectus.
(b) The documents 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 Exchange Act, and none of such documents, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Delivery Date, 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 made therein not misleading. At the date of the Prospectus, at the Closing Time and at each Date of Delivery, if any, the Prospectus and any amendments and supplements thereto did not and will not include 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.
(ciii) As of the date of this Agreement, the Company has an authorized capitalization as set forth under the heading entitled "Actual" in the section of the Registration Statement The Preliminary Prospectus was and the Prospectus entitled "Capitalization" and, as delivered to the Underwriters for use in connection with the offering of the Delivery Date Securities will, at the Company shall have an authorized capitalization as set forth under time of such delivery, be identical to the heading entitled electronically transmitted copies thereof filed with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System ("As Adjusted" in EDGA▇"), except to the section of the Registration Statement and the Prospectus entitled "Capitalization"; all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonextent permitted by Regulation S-assessable; the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended T.
(the BHC Act); the Company has been duly iv) The documents incorporated and is validly existing as a corporation under the laws of the State of Indiana, with full power and authority or deemed to own its properties and conduct its business as described be incorporated by reference in the Registration Statement and the Prospectus, to execute and deliver at the relevant Operative Documents and to issue and sell time they were filed with the Debentures and to issue Shares upon conversion of the Capital Securities as herein contemplated.
(d) The Company and each of its subsidiaries (the "Subsidiaries") are duly qualified or licensed by in each jurisdiction in which they conduct their respective businesses and in which the failure, individually or in the aggregate, to be so licensed or qualified could have a material adverse effect on the operations, business or condition of the Company and its Subsidiaries, taken as a whole; and the Company and each of its Subsidiaries are in compliance Commission complied in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions;
(e) The deposit accounts requirements of the Company's bank and savings association subsidiaries are insured by Securities Exchange Act of 1934, as amended (the Bank Insurance Fund of the Federal Deposit Insurance Corporation ("FDICExchange Act") or the Savings Association Insurance Fund of the FDIC to the fullest extent permitted by law ), and the rules and regulations of the FDIC, and no proceedings for Commission thereunder (the termination of such insurance are pending or threatened.
(f"Exchange Act Regulations") Neither the Company nor any of its Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter or by-laws or (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound (except, in the case of clause (ii), where such breach or default does not have a material adverse effect on the operations, business or condition of the Company and its Subsidiaries, taken as a whole), and the execution, delivery and performance of the Operative Documents by the Company and the Trust and the issuance of the Capital Securities, the Debentures and the Shares and consummation of the transactions contemplated hereby and thereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), any provisions of the charter or by-laws of the Company or any of its Subsidiaries or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries.
(g) The Capital Securities and the Common Securities have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein and read together with the other information in the Prospectus, will be duly at the date of the Prospectus, at the Closing Time and validly issuedat each Date of Delivery, fully paid and non-assessable; and if any, did not include an untrue statement of a material fact or omit to state a material fact necessary to make the Capital Securities and the Common Securitiesstatements therein, when issued and delivered, will conform in all material respects to the descriptions thereof contained in the Prospectus; the Shares initially issuable upon conversion light of the Capital Securities have been duly authorized and validly reserved for issuance upon conversion of the Capital Securities and are free of statutory and contractual preemptive rights and are sufficient circumstances in number to meet current conversion requirementswhich they were made, and such Shares, when so issued upon such conversion in accordance with the terms of the Indenture and Trust Agreement, will be duly and validly issued and fully paid and nonassessable, with no personal liability attaching to the ownership thereofnot misleading.
(h) The Indenture has been duly authorized, and when duly executed by the proper officers of the Company (assuming due execution and delivery by the Indenture Trustee) and delivered by the Company will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures have been duly authorized and, when duly executed, authenticated, issued and delivered as contemplated in the Indenture, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Debentures, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus.
(i) The Trust has been duly created and is validly existing as a statutory business trust in good standing under the Delaware Act with the trust power and authority to own property and conduct its business as described in the Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement as described in the Prospectus; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, the Amended and Restated Trust Agreement (the " Trust Agreement") among the Company, The Bank of New York, as property trustee (the "Property Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee") and the individuals named therein as the Administrative Trustees (the "Administrative Trustees", and together with the Property Trustee and the Delaware Trustees, the "Trustees"), and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by this Agreement and the agreements and instruments contemplated by the Trust Agreement and described in the Prospectus; and the Trust is not a party to or subject to any action, suit or proceeding of any nature.
(j) The Trust Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company and the Trustees, will be a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and will conform in all material respects to the description thereof contained in the Prospectus. Each of the Administrative Trustees is an employee of the Company and has been duly authorized by the Company to serve in such capacity and to execute and deliver the Trust Agreement.
(k) The Guarantee Agreement has been duly authorized and, when duly executed and delivered by the proper officers of the Company and the Guarantee Trustee, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; and the Guarantee Agreement, when executed and delivered, will conform in all material respects to the description thereof contained in the Prospectus.
(l) This Agreement has been duly authorized, executed and delivered by each of the Company and the Trust.
(m) The capital stock of the Company, including the Shares, conform in all material respects to the description thereof contained in the Registration Statement and Prospectus.
(n) No approval, authorization, consent or order of or filing with any national, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance by the Company and the Trust of the Operative Documents or the issuance and sale of the Capital Securities and the Shares as contemplated hereby other than as may be required under the Act and the Exchange Act and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Capital Securities and the Shares are being offered by the Underwriters.
(ov) KPMG Peat Marwick LLP, whose reports on who certified the consolidated financial statements of the Company and its Subsidiaries are filed with the Commission as part of subsidiaries included or incorporated by reference in the Registration Statement and Prospectus, are independent public accountants as required by the Securities Act and the applicable published rules and regulations thereunder;
(p) Each of the Company and its Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its respective business; neither the Company nor any of its Subsidiaries is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of its Subsidiaries the effect of which could have a material adverse effect on the Company and its Subsidiaries taken as a wholeSecurities Act Regulations.
(q) All legal or governmental proceedings, contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required.
(r) There are no actions, suits or proceedings pending or threatened against the Company or any of its Subsidiaries or any of their respective properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which could result in a judgment, decree or order having a material adverse effect on the business, condition, prospects or property of the Company and its Subsidiaries taken as a whole.
(svi) The audited financial statements statements, including the related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its Subsidiaries subsidiaries as of the dates indicated and the consolidated results of operations and changes in financial position of the Company and its Subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved.
(t) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, and except as may be otherwise stated in the Registration Statement or Prospectus, there has not been (A) any material and unfavorable change, financial or otherwise, in the business, properties, prospects, regulatory environment, results of operations or condition (financial or otherwise), present or prospective, of the Company and its Subsidiaries taken as a whole, (B) any transaction, which is material to the Company and its Subsidiaries taken as a whole, contemplated or entered into by the Company or either of its Subsidiaries or (C) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries taken as a whole.the
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