REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The Company represents and warrants to you, and agrees with you, that as of the Commencement Date and at all times at or prior to the time when the Exchange Offer is consummated (the “Closing Date”): (a) The Registration Statement, including the Prospectus, has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act and has been filed with the Commission as of the Commencement Date and is expected by the Company to become effective not later than the scheduled expiration date of the Exchange Offer. Such amendments to such Registration Statement and Prospectus as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement and Prospectus as may hereafter be required. Copies of such Registration Statement and Prospectus, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel. No stop order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the best knowledge of the Company, are threatened by the Commission. (b) The Schedule TO has been prepared by the Company in conformity in all material respects with the requirements of the Exchange Act and has been or will, at prior to commencement of the Exchange Offer, be filed with the Commission; such amendments to such Schedule TO as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Schedule TO as may hereafter be required. Copies of such Schedule TO, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel. (i) The Exchange Offer Materials, including the Registration Statement, [the Preliminary Prospectus,] the Prospectus and the Schedule TO, comply and, as amended or supplemented, if applicable, will comply, in all material respects, with the Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations of the Commission thereunder (the “Trust Indenture Act”); (ii) the Registration Statement, when it becomes effective, will not contain and as amended or supplemented thereafter, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the [Preliminary Prospectus, the] Prospectus or the other Exchange Offer Materials at the Commencement Date and at all times at or prior to the Closing Date contains, and, as amended or supplemented, if applicable, will contain, any 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; except that the representations and warranties set forth in this paragraph 8(c) do not apply to (A) statements or omissions in the Exchange Offer Materials, including the Registration Statement or the Prospectus, or, in each case, any amendment or supplement thereto, based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (B) information which shall constitute the Statement of Eligibility under the Trustee Indenture Act (Form T-1) of the Trustee under the Indenture; and (iv) there are no agreements, leases, contracts or other documents required to be described in the [Preliminary Prospectus,] Prospectus or Schedule TO or to be filed as exhibits to the Registration Statement or Schedule TO which have not been so described or filed. (d) The documents incorporated or deemed to be incorporated by reference in the [Preliminary Prospectus and the] Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information in the [Preliminary Prospectus or the] Prospectus[, as the case may be,] at the time the Registration Statement and any amendments thereto become effective and at the Commencement Date and the Closing Date, as the case may be, 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 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. (e) The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the distribution of the Exchange Securities in exchange for the Existing Securities pursuant to the Exchange Offer, any offering material in connection with the Exchange Offer other than the Exchange Offer Materials. (f) Each of the Company and its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the [Preliminary Prospectus and the] Prospectus. Each of the Company and each Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined below). All of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. “Subsidiary” shall mean any entity of which the Company owns, directly or indirectly, at least 50 percent of the voting securities, provided that no entity shall be deemed to be a Subsidiary for purposes of this Agreement unless such entity is accounted for as a consolidated entity in the Company’s consolidated financial statements in accordance with generally accepted accounting principles in the United States.
Appears in 2 contracts
Samples: Dealer Manager Agreement, Dealer Manager Agreement (Pmi Group Inc)
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The Each of the Company and PPL Capital Funding (collectively, the “Issuers”) jointly and severally represents and warrants to you, and agrees with you, that as on each of the Commencement Date, the Expiration Date, the Exchange Date and at all times at or prior on the date of any post-effective amendment to the time when the Exchange Offer is consummated Registration Statement (the each, an “Closing Amendment Date”):) that:
(a) The Registration Statement, including the Prospectus, has been prepared by the Company in conformity in all material respects with Issuers meet the requirements for use of Form S-4 under the Securities Act and has been filed with the Commission as of the Commencement Date and is expected by the Company to become effective not later than the scheduled expiration date of the Exchange Offer. Such amendments to such Registration Statement and Prospectus as may have been required prior to the date hereof have been similarly prepared and filed with the CommissionAct; and the Company will file such additional amendments to such Registration Statement and Prospectus as may hereafter be required. Copies of such Registration Statement and Prospectus, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after on the Commencement Date, the Registration Statement will be, delivered or made available to you on the Expiration Date and your counsel. No Exchange Date, has become, effective as of the Expiration Date; no stop order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the best knowledge of the Company, are threatened by the Commission.
(b) The Schedule TO A complete and correct copy of the Offer Materials has been prepared furnished to you or will be furnished to you no later than the Commencement Date. The Offer Materials, as amended and supplemented form time to time, will comply in all material respects with the provisions of the Securities Act, and the Exchange Act, and the rules and regulations promulgated by the Company Commission thereunder and with all applicable requirements of the laws of those jurisdictions in conformity which solicitations of exchanges or tenders pursuant to the Offer are or will be made. Each part of the Registration Statement, when such part became or becomes effective, the Prospectus and any amendment or supplement thereto, and the Offer Materials (including the Registration Statement) on the date of filing thereof with the Commission, and at any time during the period from the Commencement Date up to and including the Exchange Date (such period, the “Offer Period”), conformed or will conform in all material respects with the requirements of the Exchange Act and has been or will, at prior to commencement of the Exchange Offer, be filed with the Commission; such amendments to such Schedule TO as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Schedule TO as may hereafter be required. Copies of such Schedule TO, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel.
(i) The Exchange Offer Materials, including the Registration Statement, [the Preliminary Prospectus,] the Prospectus and the Schedule TO, comply and, as amended or supplemented, if applicable, will comply, in all material respects, with the Securities Act, the Exchange Act and the Trust Indenture Act ; each part of 1939, as amended, and the applicable rules and regulations of the Commission thereunder (the “Trust Indenture Act”); (ii) the Registration Statement, when it such part became or becomes effective, the Schedule TO and any public announcement of the Company relating to the Offer filed with the Commission pursuant to Rule 425 under the Mxxxxx Sxxxxxx & Co. Incorporated November 17, 2003 Securities Act did not or will not contain and as amended or supplemented thereafter, if applicable, will not contain, any 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; (iii) none and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the [Preliminary Prospectus, the] Prospectus or Commission and during the other Exchange Offer Materials at the Commencement Date and at all times at or prior to the Closing Date contains, and, as amended or supplementedPeriod, if applicableany, did not or will contain, any not include 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; except that the representations and warranties set forth .
(c) The documents incorporated by reference in this paragraph 8(c) do not apply to (A) statements or omissions in the Exchange Offer Materials, including the Registration Statement or and the Prospectus, or, in each case, or any amendment or supplement thereto, based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (B) information which shall constitute the Statement of Eligibility when they became effective under the Trustee Indenture Securities Act (Form T-1) of the Trustee under the Indenture; and (iv) there are no agreements, leases, contracts or other documents required to be described in the [Preliminary Prospectus,] Prospectus or Schedule TO or to be filed as exhibits to the Registration Statement or Schedule TO which have not been so described or filed.
(d) The documents incorporated or deemed to be incorporated by reference in the [Preliminary Prospectus and the] Prospectus, at the time they were or hereafter are filed with the CommissionCommission under the Exchange Act, complied and will comply as the case may be, conformed in all material respects with the requirements of the Securities Act or the Exchange Act, andas applicable, and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when read together such documents become effective or are filed with the other information in the [Preliminary Prospectus or the] Prospectus[, as the case may be,] at the time the Registration Statement and any amendments thereto become effective and at the Commencement Date and the Closing DateCommission, as the case may be, will not contain an untrue statement conform in all material respects to the requirements of a the Securities Act or the Exchange Act, as applicable.
(d) The consolidated financial statements of the Company and its subsidiaries, together with the related notes and schedules, set forth or incorporated by reference in the Registration Statement and Prospectus comply as to form in all material fact or omit to state a respects with the applicable accounting requirements of the Securities Act and the Exchange Act; such audited financial statements have been prepared in all material fact respects in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and no material modifications are required to be stated therein or necessary made to make the fact required unaudited interim financial statements for them to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingconformity with generally accepted accounting principles.
(e) The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the distribution of the Exchange Securities in exchange for the Existing Securities pursuant to the Exchange Offer, any offering material in connection with the Exchange Offer other than the Exchange Offer Materials.
(f) Each of the Company and its Subsidiaries PPL Capital Funding has been duly incorporated and is validly existing as a corporation in good standing under the laws of the its jurisdiction of its incorporation and has with corporate power and authority to ownenter into and perform its obligations under this Agreement, lease the New PEPS Agreements and operate the New Notes Agreements to the extent a party thereto.
(f) This Agreement has been duly and validly authorized, executed and delivered by each of the Issuers.
(g) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus. Mxxxxx Sxxxxxx & Co. Incorporated November 17, 2003
(h) The shares of common stock of the Company outstanding prior to the issuance of the New PEPS Units have been duly authorized and are validly issued, fully paid and non-assessable, and are not subject to any preemptive or similar rights.
(i) The New Common Shares to be issued and sold by the Company pursuant to the settlement of the New Purchase Contracts have been duly and validly authorized and reserved for issuance; such New Common Shares, when issued and delivered in accordance with the provisions of the New PEPS Agreements, will be validly issued, fully paid and non-assessable; and the issuance of such New Common Shares will not be subject to any preemptive or similar rights.
(j) The shares of common stock of the Company outstanding prior to the issuance of the New PEPS Units are, and upon issuance of the New Common Shares to be issued and sold by the Company pursuant to the settlement of the New Purchase Contracts will be, listed on the New York and Philadelphia Stock Exchanges.
(k) The New PEPS Units and the New PEPS Agreements have been duly authorized and, at the Exchange Date, will have been duly executed and delivered by the Company, and, as of the Exchange Date, assuming due authorization, execution and delivery by parties thereto other than the Company, the New PEPS Agreements will constitute valid and binding agreements of the Company, enforceable in accordance with their terms, except to the extent limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium laws or by other laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights and by general equitable principles (regardless of whether considered in a proceeding in equity or at law), an implied covenant of good faith and fair dealing and consideration of public policy, and Federal or state securities law limitations on indemnification and contribution (the “Enforceability Exceptions”); provided, however, that upon the occurrence of a Termination Event (as defined in the New Purchase Contract Agreement), the United States Bankruptcy Code (11 U.S.C. Sections 101-1330, as amended) should not substantively limit the provisions of Section 3.15 and 5.07 of the New Purchase Contract Agreement and Section 5.4 of the New Pledge Agreement that require termination of the New Purchase Contracts and release of the New Collateral Agent’s security interest in the New Notes or the Treasury Securities (as defined in the New Purchase Contract Agreement); the New PEPS Units and the New PEPS Agreements conform in all material respects to the descriptions thereof contained in the Prospectus; Mxxxxx Sxxxxxx & Co. Incorporated November 17, 2003
(l) The Remarketing Agreement described in the Prospectus (the “Remarketing Agreement”) has been duly authorized by each of the Issuers and when executed and delivered by each of the Issuers will constitute a valid and binding agreement of each of the Issuers, enforceable in accordance with its properties terms, except to the extent limited by the Enforceability Exceptions; and the Remarketing Agreement conforms in all material respects to conduct the description thereof in the Prospectus;
(m) The New Notes and the New Guarantee have been duly authorized, and, when issued and delivered pursuant to the Indenture, will have been duly executed, authenticated, issued and delivered and will constitute valid and binding obligations of PPL Capital Funding and the Company, as applicable, entitled to the benefits provided by the Indenture; the Indenture has been duly authorized, executed and delivered by PPL Capital Funding and the Company and constitutes a valid and binding agreement, enforceable in accordance with its business terms, except to the extent limited by the Enforceability Exceptions; and the Indenture conforms in all material respects to the description thereof in the Prospectus;
(n) The Indenture, upon effectiveness of the Registration Statement, will be duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”);
(o) None of the Issuers is, and after giving effect to the Offer and sale of the New PEPS Units as described in the [Preliminary Prospectus Prospectus, will not be, an “investment company” within the meaning of and the] subject to regulation under the Investment Company Act of 1940, as amended;
(p) Since the respective dates as of which information is given in the Registration Statement and the Prospectus. Each , except as otherwise stated therein or contemplated thereby, there has been no event or occurrence that would result in a material adverse change, or any development involving a material adverse change, in the financial position or results of operations of the Company and each Subsidiary is duly qualified its subsidiaries considered as a foreign corporation to transact business one enterprise.
(q) The issue and is in good standing in each other jurisdiction in which such qualification is required, whether by reason sale of the ownership New PEPS Units and the compliance by each Issuer with all of the provisions of this Agreement, the New PEPS Agreements and the New Notes Agreements to the extent a party thereto and the consummation of the transactions contemplated herein and therein will not result in a breach or leasing violation of property any of the terms and provisions of, or constitute a default under, any constituent document of any Issuer or any material agreement or instrument to which the conduct Company or any of business, its subsidiaries is a party or by which it is bound except for such jurisdictions breaches or defaults that would not in the aggregate have a material adverse effect on the Issuers’ ability to perform their respective Mxxxxx Sxxxxxx & Co. Incorporated November 17, 2003 obligations under this Agreement, the New PEPS Agreements and the New Notes Agreements to the extent a party thereto.
(r) The issuance of the New Notes, the New Guarantee, the New Purchase Contracts, the New PEPS Units, and the New Common Shares and the compliance by the Issuers with all of the provisions of this Agreement and the making of the Offer by the Issuers in the manner set forth and subject to the terms and conditions in the Registration Statement and the consummation by the Issuers of the transactions contemplated hereby to be consummated by the Issuers will not violate the Exchange Act or any rule or regulation that has been issued thereunder.
(s) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants with respect to the Company and its subsidiaries as required by the Securities Act.
(t) The Company maintains systems of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s authorizations and transactions are recorded as necessary to permit preparation of financial statements.
(u) Except as disclosed in the Offer Materials, the Offer, the purchase of Outstanding PEPS Units pursuant to the Offer and the execution and delivery of, and the consummation of the transactions contemplated in, this Agreement will comply with all applicable requirements of law, including any applicable regulation of any governmental agency or instrumentality, and no consent, authorization, approval, order, exemption or other action of, or filing with, any governmental agency or instrumentality of the United States or any jurisdiction thereof or any other jurisdiction is required in connection with the Offer or the consummation by the Company of the transactions contemplated herein, except in each case where the failure to so qualify comply with such laws and regulations and to obtain or make such consent, authorization, approval, order, exemption, other action, or filing would not materially adversely affect the ability of the Company to execute and deliver this Agreement or to be consummate the Offer in good standing would notaccordance with its terms or to consummate the transactions contemplated by this Agreement;
(v) The Offer (including any related borrowings by the Company or any of its subsidiaries or affiliates), individually or in the aggregatepurchase of Outstanding PEPS Units pursuant to the Offer and the execution and delivery of, have a Material Adverse Effect (as defined below). All and the consummation of the issued transactions contemplated in, this Agreement will not result in a breach or violation of any of the terms Mxxxxx Sxxxxxx & Co. Incorporated November 17, 2003 and outstanding capital stock of each Subsidiary has been duly authorized and validly issuedprovisions of, is fully paid and nonassessable and is owned by or constitute a default under, the Company’s articles of incorporation or by-laws, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance material agreement or claim. “Subsidiary” shall mean any entity of instrument to which the Company owns, directly or indirectly, at least 50 percent any of its subsidiaries is a party or by which it is bound except for such breaches or defaults that would not in the voting securities, provided that no entity shall be deemed to be aggregate have a Subsidiary for purposes of this Agreement unless such entity is accounted for as a consolidated entity in material adverse effect on the Company’s consolidated financial statements in accordance with generally accepted accounting principles in the United Statesability to perform its obligations under this Agreement.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The Company represents and warrants to you, and agrees with you, that as of the Commencement Date and at all times at or prior to as of the time date when the Exchange Offer is consummated (the “"Closing Date”"):
(a) The Registration Statement, including the Prospectus, has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act and Statement has been filed with the Commission as of the Commencement Date and is expected has been declared effective by the Company to become effective not later than the scheduled expiration date of the Exchange OfferCommission. Such amendments to such Registration Statement and Prospectus and such abbreviated registration statements pursuant to Rule 462(b) of the Securities Act as may have been required by applicable law prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement and Prospectus and such abbreviated registration statements as may hereafter be requiredrequired by applicable law. Copies of such Registration Statement and Prospectus, including all amendments thereto and all documents incorporated by reference therein therein, and of any abbreviated registration statement pursuant to Rule 462(b) of the Securities Act have been or, if filed after the Commencement Date, or will be, delivered or made available to you and your counsel. No stop order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the best knowledge of the Company's knowledge, are threatened threatened, by the Commission.
(b) The Schedule TO has been prepared by the Company in conformity in all material respects with the requirements of the Exchange Act and has been or will, at prior to commencement of the Exchange Offer, be filed with the Commission; such amendments to such Schedule TO as may have been required by applicable law prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Schedule TO as may hereafter be requiredrequired by applicable law. Copies of such Schedule TO, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel.
(i) The Exchange Offer Materials, including the Registration Statement, [the Preliminary Prospectus,] the Prospectus and the Schedule TO, comply and, as amended or supplemented, if applicable, and will continue to comply, in all material respects, with the Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations of the Commission thereunder (the “"Trust Indenture Act”"); (ii) the Registration Statement, when it becomes became effective, will did not contain and as amended or supplemented thereafter, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (iii) none of the [Preliminary Prospectus, the] Prospectus or the other Exchange Offer Materials at the Commencement Date and at all times at or prior to the Closing Date contains, and, as amended or supplemented, if applicable, will contain, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 8(c) do not apply to (A) statements or omissions in the Exchange Offer Materials, including the Registration Statement or the Prospectus, or, in each case, any amendment or supplement thereto, based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (Bas set forth in Section 11(b) information which shall constitute the Statement of Eligibility under the Trustee Indenture Act (Form T-1) of the Trustee under the Indenture; and (iv) there are no agreements, leases, contracts or other documents required to be described in the [Preliminary Prospectus,] Prospectus or Schedule TO or to be filed as exhibits to the Registration Statement or Schedule TO which have not been so described or filedherein.
(d) The documents incorporated or deemed to be incorporated by reference in the [Preliminary Prospectus and the] Registration Statement or the Prospectus, at the time they were or hereafter are filed with the Commission, complied conformed and will comply conform in all material respects with to the requirements of the Exchange Act, and, when read together with the other information in the [Preliminary Prospectus Registration Statement or the] the Prospectus[, as the case may be,] , at the time the Registration Statement and any amendments thereto become became effective and at the Commencement Date and the Closing Date, as the case may be, none of such documents included or will not contain an include any untrue statement of a material fact or omitted or will omit to state a any material fact required to be stated therein or necessary in order to make the fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the distribution of the Exchange Securities in exchange for the Existing Securities pursuant to the Exchange Offer, any offering material in connection with the Exchange Offer other than the Exchange Offer Materials.
(f) Each of the The Company and its Subsidiaries has been duly incorporated and is validly existing in good standing under the laws of the State of Texas, with corporate power and authority to own its properties and conduct its business as a corporation described in the Prospectus.
(g) Each subsidiary of the Company has been duly formed and is validly existing in good standing under the laws of the jurisdiction of its incorporation and has corporate formation, with power and authority (corporate and other) to own, lease and operate own its properties and to conduct its business as described in the [Preliminary Prospectus Prospectus; and the] Prospectus. Each each subsidiary of the Company and each Subsidiary is duly qualified to do business as a foreign corporation to transact business and is corporation, limited partnership or limited liability company in good standing in each all other jurisdiction jurisdictions in which such qualification is required, whether by reason of the its ownership or leasing lease of property or the conduct of business, except for its business requires such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined below). All qualification; all of the issued and outstanding capital stock ownership interests of each Subsidiary has subsidiary of the Company have been duly authorized and validly issued, is fully paid issued in accordance with the organizational documents of such subsidiary; and nonassessable and is the ownership interests of each subsidiary owned by the Company, directly or through Subsidiariessubsidiaries, is owned free from liens, encumbrances and clear defects.
(h) The Company's authorized equity capitalization is as set forth in the Prospectus and the capital stock of the Company conforms to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the shares of Common Stock initially issuable upon conversion of the Exchange Securities have been duly authorized and reserved for issuance and, when delivered upon conversion of the Exchange Securities against payment of the conversion price and in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights under the Amended and Restated Articles of Incorporation or the Amended and Restated Bylaws of the Company, each as amended to date, or the Texas Business Corporation Act, as amended to date, to subscribe for the Exchange Securities or the shares of Common Stock issuable upon conversion thereof; and, except (i) as set forth in the Prospectus and (ii) for options, restricted stock and performance shares granted pursuant to the CenterPoint Energy, Inc. Long-Term Incentive Plan and the CenterPoint Energy, Inc. Stock Plan for Outside Directors, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company, which were granted by the Company, are outstanding.
(i) The Company has all corporate power to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(j) The Exchange Securities and the Indenture have been duly authorized by the Company; the Base Indenture has been duly executed and delivered by the Company and, when the Supplemental Indenture has been duly executed and delivered by the Company in accordance with its terms and assuming the valid execution and delivery thereof by the Trustee, the Indenture will constitute, and, in the case of the Exchange Securities, when executed and delivered by the Company pursuant to the terms hereof, and duly authenticated and delivered by the Trustee as provided in the Indenture, the Exchange Securities will, on the Closing Date, constitute, valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); the Exchange Securities when executed and delivered by the Company, and duly authenticated and delivered by the Trustee, will be entitled to the benefits of the Indenture and will be convertible into Common Stock in accordance with their terms and the terms of the Indenture; the Indenture has been qualified under the Trust Indenture Act. The Exchange Securities and the Common Stock will conform to the descriptions thereof in the Prospectus.
(k) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Exchange Securities and the Indenture (collectively, the "Transaction Documents"), and the consummation by the Company of the Exchange Offer and the transactions herein contemplated (a) will not conflict with or result in a breach or violation of any security interestof the terms or provisions of, or constitute a default under, any indenture, mortgage, pledgedeed of trust, lien, encumbrance loan agreement or claim. “Subsidiary” shall mean any entity of other agreement or instrument to which the Company owns, directly or indirectly, at least 50 percent any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the voting securitiesproperty or assets of the Company or any subsidiary is subject, provided that which conflict, breach, violation, or default would individually, or in the aggregate, have a material adverse effect on the financial condition, business or results of operations of the Company and its subsidiaries taken as a whole ("Material Adverse Effect") and (b) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws or other organizational documents of the Company, the charter, by-laws or other organizational documents of any subsidiary of the Company or any existing statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company's or any of its or its subsidiaries' properties; and no entity consent, approval, authorization or order of, or filing or registration with any such court or governmental agency or body under any such statute, judgment, order, decree, rule or regulation is required for the execution, delivery and performance by the Company of each Transaction Document to which it is a party, the authentication and delivery of the Exchange Securities and the issuance of the Common Stock issuable upon conversion thereof, and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, filings, registrations or qualifications (A) which shall have been obtained or made prior to the Closing Date, including without limitation the order dated June 30, 2003 of the Commission under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), (B) as may be deemed required to be a Subsidiary for purposes obtained or made under applicable state securities laws or "blue sky" laws and (C) as may be required under the Securities Act, the Exchange Act and the Trust Indenture Act.
(l) The Company and its subsidiaries possess certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of this Agreement unless proceedings relating to the revocation or modification of any such entity is accounted for as a consolidated entity certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(m) The Company is not, and after giving effect to the consummation of the Exchange Offer, will not be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act").
(n) Except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Company is not aware of any pending investigation which has a reasonable possibility of leading to such a claim.
(o) Except as disclosed in the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company’s consolidated , any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under the Indenture or this Agreement, or which are otherwise material in the context of the consummation of the Exchange Offer or the consummation of any of the transactions contemplated hereby or thereby; and no such actions, suits or proceedings are threatened or, to the Company's knowledge, contemplated.
(p) The financial statements included in accordance or incorporated by reference in the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the Prospectus, such financial statements have been prepared in conformity with the generally accepted accounting principles in the United StatesStates applied on a consistent basis.
(q) Since the date of the latest audited financial statements included in or incorporated by reference in the Prospectus and except as disclosed in the Prospectus there has been no material adverse change in the business, financial condition, prospects or results of operations of the Company and its subsidiaries taken as a whole, and there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its membership interests (other than regular quarterly dividends on the Common Stock and other dividends described in the Prospectus).
(r) All written communications, in addition to the Schedule TO, made during the period from the first public announcement and to the earlier of either the expiration date or the Closing Date of the Exchange Offer have been or will be filed with the Commission in accordance with the Exchange Act and the Commission's rules and regulations including Rule 13e-4 under the Exchange Act.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The Company represents and warrants to you, and agrees with you, that as of the Commencement Date and at all times at or prior to the time when the Exchange Offer is consummated (the “Closing Date”):that:
(a) The Registration Statementit is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all the necessary corporate power and authority, and has taken all necessary corporate action, to authorize the Offer and the Consent Solicitation, the purchase of Notes pursuant to the Offer, the payment for the Consents pursuant to the Consent Solicitation and all other actions by the Company contemplated in the Offer and Consent Solicitation Material, including the Prospectus, consummation of the Transaction and the execution and delivery of the Supplemental Indentures;
(b) this Agreement has been prepared by duly authorized, executed and delivered by, and is a legal, valid and binding agreement of, the Company, enforceable against the Company in conformity accordance with its terms, except as the enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law) and except as rights to indemnity under this Agreement may be limited by Federal or state securities laws;
(c) a complete and correct copy of the Offer and Consent Solicitation Material has been furnished to you or will be furnished to you no later than the date the Offer and Consent Solicitation is commenced (the "Commencement Date"). The Offer and Consent Solicitation Material, as amended and supplemented from time to time, complies and will comply in all material respects with the requirements provisions of the Securities Act and has been filed with the Commission as of the Commencement Date and is expected by the Company to become effective not later than the scheduled expiration date of the Exchange Offer. Such amendments to such Registration Statement and Prospectus as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement and Prospectus as may hereafter be required. Copies of such Registration Statement and Prospectus, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel. No stop order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the best knowledge of the Company, are threatened by the Commission.
(b) The Schedule TO has been prepared by the Company in conformity in all material respects with the requirements of the Exchange Act and has been or will, at prior to commencement of the Exchange Offer, be filed with the Commission; such amendments to such Schedule TO as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Schedule TO as may hereafter be required. Copies of such Schedule TO, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel.
(i) The Exchange Offer Materials, including the Registration Statement, [the Preliminary Prospectus,] the Prospectus and the Schedule TO, comply and1933, as amended or supplemented(the "Securities Act"), if applicable, will comply, in all material respects, with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Exchange Act rules and the Trust Indenture Act of 1939, as amendedregulations thereunder, and the applicable rules various state securities or "blue sky" laws. The Offer and regulations of the Commission thereunder (the “Trust Indenture Act”); (ii) the Registration Statement, when it becomes effective, Consent Solicitation Material does not and will not contain and as amended or supplemented thereafter, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the [Preliminary Prospectus, the] Prospectus or the other Exchange Offer Materials at the Commencement Date and at all times at or prior to the Closing Date contains, and, as amended or supplemented, if applicable, will contain, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were are made, not misleading; except that the representations and warranties set forth in this paragraph 8(c) do not apply to (A) statements or omissions in the Exchange Offer Materials, including the Registration Statement or the Prospectus, or, in each case, any amendment or supplement thereto, based upon information relating to the Dealer Manager furnished to the Company in writing by the Dealer Manager expressly for use therein or (B) information which shall constitute the Statement of Eligibility under the Trustee Indenture Act (Form T-1) of the Trustee under the Indenture; and (iv) there are no agreements, leases, contracts or other documents required to be described in the [Preliminary Prospectus,] Prospectus or Schedule TO or to be filed as exhibits to the Registration Statement or Schedule TO which have not been so described or filed.;
(d) The documents incorporated the Offer and Consent Solicitation, the purchase of the Notes pursuant to the Offer, the payment for the Consents pursuant to the Consent Solicitation, the execution, delivery and performance of the Supplemental Indentures, all other actions by the Company contemplated in the Offer and Consent Solicitation Material, including the consummation of the Transaction, and the execution and delivery of, and the consummation of the transactions contemplated in, this Agreement will comply in all material respects with all applicable requirements of law, including any applicable rule or deemed regulation of any governmental agency, authority or instrumentality, and no consent, authorization, approval, order, exemption or other action of, or filing with, any governmental agency, authority or instrumentality of the United States or any jurisdiction therein or any other jurisdiction is required in connection with the Offer and the Consent Solicitation or the consummation by the Company of the transactions contemplated herein or in the Offer and Consent Solicitation Material, including the consummation of the Transaction, except that a final order from the Federal Trade Commission ("FTC") and the California Attorney General granting consent to the Acquisition is required to be obtained;
(e) the Offer and the Consent Solicitation, the purchase of Notes pursuant to the Offer, the payment for the Consents pursuant to the Consent Solicitation, the execution, delivery and performance of the Supplemental Indentures, all other actions by the Company contemplated in the Offer and Consent Solicitation Material, including the consummation of the Transaction, and the execution and delivery of, and the consummation of the transactions contemplated in, this Agreement do not and will not (i) conflict with, result in a breach of or constitute a default under, the certificate of incorporation or by-laws of the Company or any of its subsidiaries or any loan or credit agreement, indenture, mortgage, note or other material agreement or instrument affecting the Company or any of its subsidiaries or to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties or assets is or may be bound or (ii) conflict with or violate any order, judgment or decree of any court or governmental agency, authority or instrumentality of the United States or any jurisdiction therein or any other jurisdiction applicable to the Company or any of its subsidiaries;
(f) any document incorporated by reference in the [Preliminary Prospectus Offer and the] ProspectusConsent Solicitation Material or from which information is so incorporated by reference when filed or becoming effective, at as the time they were or hereafter are filed with the Commissioncase may be, complied and will comply in all material respects with the requirements of the Securities Act and the Exchange Act, andas applicable, when read together and the applicable rules and regulations thereunder;
(g) each of the Supplemental Indentures has been duly and validly authorized by the Company and may be entered into upon the consent of holders of a majority of the aggregate principal amount of the Notes outstanding under the applicable Indenture (the "Requisite Consents"), pursuant to the provisions of the applicable Indenture. Upon the receipt of the Requisite Consents, the Company will execute and deliver the Supplemental Indentures. Upon such execution and delivery thereof, each of the Supplemental Indentures will have been duly and validly authorized, executed and delivered by, and will be a legal, valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms, except as the enforceability of the Supplemental Indentures may be limited by bankruptcy, insolvency, reorganization, moratorium or other information similar laws now or hereafter in effect relating to creditors' rights generally and may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(h) the Proposed Amendments set forth in the [Preliminary Prospectus Supplemental Indentures when executed and delivered will conform in all material respects to the description thereof in the Offer and Consent Solicitation Material;
(i) on or the] Prospectus[prior to the Commencement Date, the Company will have made appropriate arrangements, to the extent applicable, with DTC or any other "qualified" securities depositary to allow for the book-entry movement of the tendered Notes between depositary participants and the Depositary;
(j) each of the representations and warranties of the Company set forth in this Agreement will be true and correct on and as the case may be,] at the time the Registration Statement and any amendments thereto become effective and at of the Commencement Date and the Closing Date, on and as the case may be, 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 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.date of payment for the Notes and the Consents (the "Settlement Date");
(ek) The neither the Offer nor the Consent Solicitation requires registration under the Securities Act; and
(l) the Company has not distributed will comply, and will not distributecooperate with you to ensure compliance, prior to the later of the Closing Date and the completion of the distribution of with Regulation 14E promulgated under the Exchange Securities in exchange for the Existing Securities pursuant to the Exchange Offer, any offering material Act in connection with the Exchange Offer other than and Consent Solicitation, to the Exchange extent such Regulation is applicable to the Offer Materialsand Consent Solicitation.
(f) Each of the Company and its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the [Preliminary Prospectus and the] Prospectus. Each of the Company and each Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined below). All of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. “Subsidiary” shall mean any entity of which the Company owns, directly or indirectly, at least 50 percent of the voting securities, provided that no entity shall be deemed to be a Subsidiary for purposes of this Agreement unless such entity is accounted for as a consolidated entity in the Company’s consolidated financial statements in accordance with generally accepted accounting principles in the United States.
Appears in 1 contract
Samples: Dealer Manager Agreement (Stater Bros Holdings Inc)
REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE COMPANY. The Company represents and warrants to you, and agrees with you, that as of the Commencement Date and at each Closing Date (provided that for purposes of representations, warranties and agreements in subsections (f) through (t) of this Section 8 made at a Closing Date, all times at or prior references to the time when Pre-Effective Registration Statement and the Exchange Offer is consummated (Preliminary Prospectus shall be deemed to refer to the “Closing Date”Registration Statement and the Prospectus, respectively):
(a) The Pre-Effective Registration Statement, including the Preliminary Prospectus, has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act and has been filed with the Commission as of the Commencement Date and is expected by the Company to become effective not later than the scheduled expiration date of the Exchange Offer. Such amendments to such Registration Statement and Prospectus as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the The Company will file such additional amendments to the Pre-Effective Registration Statement, the Registration Statement, the Preliminary Prospectus and the Prospectus and such Registration Statement and Prospectus abbreviated registration statements pursuant to Rule 462(b) of the Securities Act as may hereafter be required. Copies of such the Pre-Effective Registration Statement Statement, the Registration Statement, the Preliminary Prospectus and the Prospectus, including all amendments thereto and all documents incorporated by reference therein therein, and of any abbreviated registration statement pursuant to Rule 462(b) of the Securities Act have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel. No stop order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the best knowledge of the Company, or are threatened by the Commission.
(b) The Schedule TO has been prepared by the Company in conformity in all material respects with the requirements of the Exchange Act and has been or will, at prior to commencement of the Exchange Offer, be filed with the Commission; such amendments to such Schedule TO as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Schedule TO as may hereafter be required. Copies of such Schedule TO, including all amendments thereto and all documents incorporated by reference therein have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel.
(i) The Exchange Offer Materials, including the Pre-Effective Registration Statement, [the Preliminary Prospectus,] the Prospectus and the Schedule TO, comply as of the Commencement Date and, the Exchange Offer Materials, including the Registration Statement, the Prospectus and the Schedule TO as amended or supplemented, if applicable, will complycomply as of the effective date of the Registration Statement and as of the Closing Date, in all material respects, with the Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations of the Commission thereunder (the “Trust Indenture Exchange Act”); (ii) the Pre-Effective Registration Statement does not, and the Registration Statement, when it becomes effective, will not contain effective and as amended or supplemented thereafter, if applicable, will not not, contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the [Preliminary Prospectus, the] Prospectus or the other Exchange Offer Materials at the Commencement Date and at all times at or prior to the Closing Date contains, and, as amended or supplemented, if applicable, will contain, any 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 and (iv) the Prospectus, as of its date and, as amended or supplemented thereafter, if applicable, will not contain, any 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; except that the representations and warranties set forth in this paragraph 8(c) do not apply to (A) statements or omissions in the Exchange Offer Materials, including the Pre-Effective Registration Statement Statement, the Registration Statement, the Preliminary Prospectus or the Prospectus, or, in each case, any amendment or supplement thereto, based upon information relating to the Dealer Manager Managers furnished to the Company in writing by the Dealer Manager Managers expressly for use therein therein, it being understood and agreed that the only such information furnished by or (B) information which shall constitute on behalf the Statement of Eligibility under the Trustee Indenture Act (Form T-1) Dealer Managers consists of the Trustee under the Indenture; and (ivinformation described as such in Section 11(b) there are no agreements, leases, contracts or other documents required to be described in the [Preliminary Prospectus,] Prospectus or Schedule TO or to be filed as exhibits to the Registration Statement or Schedule TO which have not been so described or filedhereof.
(d) The documents incorporated or deemed to be incorporated by reference in the [Pre-Effective Registration Statement, the Registration Statement, the Preliminary Prospectus and the] or the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information in the [Pre-Effective Registration Statement, the Registration Statement, the Preliminary Prospectus or the] the Prospectus[, as the case may be,] , at the time the Registration Statement and any amendments thereto become effective and at the Commencement Date and the Closing Date, as the case may be, 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 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.
(e) The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the distribution of the Exchange Securities in exchange for the Existing Securities pursuant to the Exchange Offer, any offering material in connection with the Exchange Offer other than the Exchange Offer Materials. A complete and correct copy of the Exchange Offer Materials other than the Registration Statement and the Prospectus has been furnished to you or will be furnished to you no later than the Commencement Date.
(f) Each of the Company and its Subsidiaries each subsidiary of the Company has been duly incorporated organized and is validly existing as a corporation in good standing (or its equivalent) under the laws of the jurisdiction of its incorporation and has corporate in which it is chartered or organized, with full power and authority to own, lease and operate own its properties and to conduct its business as described in the [Pre-Effective Registration Statement and the Preliminary Prospectus Prospectus, and the] Prospectus. Each of the Company and each Subsidiary is duly qualified to do business as a foreign corporation to transact business and is in good standing in (or its equivalent) under the laws of each other jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined below)Effect. All For purposes of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issuedthis Agreement, is fully paid and nonassessable and is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. a “SubsidiaryMaterial Adverse Effect” shall mean any entity a material adverse effect on the business, financial condition, results of which operations or properties of the Company ownsand its subsidiaries, directly or indirectly, at least 50 percent of the voting securities, provided that no entity shall be deemed to be a Subsidiary for purposes of this Agreement unless such entity is accounted for taken as a consolidated entity in the Company’s consolidated financial statements in accordance with generally accepted accounting principles in the United Stateswhole.
Appears in 1 contract
