Absence of Liabilities Except as set forth in the Financial Statements, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business, that individually or in the aggregate are not material to the financial condition or operating results of the Company, and (ii) obligations not required under generally accepted accounting principles to be reflected in the Financial Statements.
Absence of Certain Changes and Events Except as set forth on Schedule 3.14, since the date of the Interim Financial Statements, and, to the extent not fully reflected in the Interim Financial Statements, since the date of the Year End Financial Statements, the Company has conducted its business only in the ordinary course of business consistent with past practices, and there has not been any:
(a) change in the Company’s authorized or issued capital stock or the ownership thereof; grant of any stock option or right to purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock;
(b) amendment to the Organizational Documents of the Company;
(c) acquisition of any stock or business of, or merger or consolidation with, another Person, or any action with respect to liquidating, dissolving, recapitalizing, reorganizing or otherwise winding up the Company’s business;
(d) payment or increase by the Company of any bonuses, salaries, or other compensation to any stockholder, director, officer, or employee (except, with respect to non-executive employees, in the ordinary course of business consistent with past practice) or entry into any new, or material amendment of any existing, employment, consulting, independent contractor, severance, change of control or similar Contract;
(e) adoption of any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan;
(f) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, which has had, or would reasonably be expected to have, a Material Adverse Effect on the Company;
(g) sale (other than sales of Inventory in the ordinary course of business), lease, license, distribution or other disposition of any material asset(s) or property of the Company, or any waiver, release, transfer or assignment of any right of material value, or any mortgage, pledge, or imposition of any lien or other Encumbrance on any material asset(s) or property of the Company except as noted on Schedule 3.6 or except as explicitly permitted under Section 6.2 or required under any other provision of this Agreement;
(h) entry into any Contract or other agreement providing for payments by the Company in an aggregate amount exceeding $25,000 that is not terminable by the Company, without penalty, upon sixty (60) days notice, with the exception of agreements for the purchase of fuel entered into by the Company in the ordinary course of its business and consistent with past practice;
(i) any capital expenditure in excess of $25,000;
(j) change in any annual accounting period or accounting methods used by the Company;
(k) any modification, termination or amendment to a Material Contract or waiver of any right or claim thereunder;
(l) loss of use of any Company Intellectual Property Assets;
(m) change in methods, practices, principles or timing regarding the purchase of inventory or the payment or accrual of operating expenses, including accounts payable; or
(n) entry into any Contract, whether oral or written, by the Company to do any of the foregoing.
Absence of Certain Changes, Events and Conditions Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents of the Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(h) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation, discharge or payment of any [material] debts, liens or entitlements;
(i) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Intellectual Property;
(j) any capital investment in, or any loan to, any other Person;
(k) acceleration, termination, material modification or amendment to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which the Company is a party or by which it is bound;
(l) any material capital expenditures;
(m) imposition of any Encumbrance upon any of the Company properties, capital stock or assets, tangible or intangible;
(n) adoption, modification or termination of any: (i) material employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (ii) Benefit Plan or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(o) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders, directors, officers and employees;
(p) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(q) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(r) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof; or
(s) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Material Changes; Undisclosed Events, Liabilities or Developments Since the date of the latest audited financial statements included within the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.
No Undisclosed Liabilities; Absence of Changes Except ---------------------------------------------- as and to the extent publicly disclosed by the Company in the Company SEC Reports or as set forth in Section 2.8 of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, that would be required by generally accepted accounting principles to be reflected on a consolidated balance sheet of the Company (including the notes thereto), other than liabilities and obligations which, individually or in the aggregate, will not have a Material Adverse Effect on the Company. Except as publicly disclosed by the Company in the Company SEC Reports or as set forth in Section 2.8 of the Company Disclosure Schedule, since September 30, 1998, there have been no events, changes or effects with respect to the Company or its subsidiaries that have had or reasonably would be expected to have a Material Adverse Effect on the Company. Without limiting the generality of the foregoing, except as and to the extent publicly disclosed by the Company in the Company SEC Reports or as set forth in Section 2.8 of the Company Disclosure Schedule, since September 30, 1998, the Company and its subsidiaries have conducted their respective businesses in all material respects only in, and have not engaged in any material transaction other than according to, the ordinary and usual course of such businesses consistent with past practices, and there has not been any (i) change in the financial condition, properties, business or results of operations of the Company and its subsidiaries, except for those changes that, individually or in the aggregate, have not had and are not reasonably likely to have a Material Adverse Effect on the Company; (ii) material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any of its subsidiaries, not covered by insurance; (iii) declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock of the Company or any of its subsidiaries (other than wholly-owned subsidiaries) or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or any of its subsidiaries; (iv) amendment of any material term of any outstanding security of the Company or any of its subsidiaries; (v) incurrence, assumption or guarantee by the Company or any of its subsidiaries of any indebtedness for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practices; (vi) creation or assumption by the Company or any of its subsidiaries of any Lien on any material asset other than in the ordinary course of business consistent with past practices; (vii) loan, advance or capital contributions made by the Company or any of its subsidiaries to, or investment in, any person other than (x) loans or advances to employees in connection with business- related travel, (y) loans made to employees consistent with past practices that are not in the aggregate in excess of Fifty Thousand Dollars ($50,000), and (z) loans, advances or capital contributions to or investments in wholly-owned subsidiaries, and in each case made in the ordinary course of business consistent with past practices; (viii) transaction or commitment made, or any contract or agreement entered into, by the Company or any of its subsidiaries relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company or any of its subsidiaries of any contract, agreement or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (ix) labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its subsidiaries, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; or (x) change by the Company or any of its subsidiaries in its accounting principles, practices or methods. Since September 30, 1998, except as disclosed in the Company SEC Reports filed prior to the date hereof or increases in the ordinary course of business consistent with past practices, there has not been any increase in the compensation payable or that could become payable by the Company or any of its subsidiaries to (a) officers of the Company or any of its subsidiaries or (b) any employee of the Company or any of its Subsidiaries whose annual cash compensation is One Hundred Thousand Dollars ($100,000) or more.
STATEMENT OF LIABILITY The State will demonstrate reasonable care but shall not be liable in the event of loss, destruction, or theft of contractor-owned items to be delivered or to be used in the installation of deliverables. The contractor is required to retain total liability until the deliverables have been accepted by the “authorized agency official.” At no time will the State be responsible for or accept liability for any contractor- owned items.
Payment of Liabilities (a) On each Business Day after the occurrence and during the continuance of a Cash Control Event, the Administrative Agent shall apply the then collected balance of each Administrative Agent's Account (net of fees charged, and of such impressed balances as may be required by the bank at which such Administrative Agent's Account is maintained) First, towards the SwingLine Loans, Second, towards the unpaid balance of the Loan Account, and Third, to all other Liabilities in such order as the Administrative Agent may determine.
(b) The following rules shall apply to deposits and payments under and pursuant to this Section 8.5:
(i) Funds shall be deemed to have been deposited to an Administrative Agent's Account on the Business Day on which deposited, provided that notice of such deposit is available to the Administrative Agent by 1:00PM on that Business Day.
(ii) Funds paid to the Administrative Agent, other than by deposit to an Administrative Agent's Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that notice of such payment is available to the Administrative Agent by 1:00PM on that Business Day.
(iii) If notice of a deposit to an Administrative Agent's Account (Section 8.5(b)(i)) or payment (Section 8.5(b)(ii)) is not available to the Administrative Agent until after 1:00PM on a Business Day, such deposit or payment shall be deemed to have been made at 9:00AM on the then next Business Day.
(iv) All deposits to an Administrative Agent's Account and other payments to the Administrative Agent are subject to clearance and collection.
(c) The Administrative Agent shall transfer to the Operating Account of the applicable Borrower any surplus in the Administrative Agent's Account remaining after the application towards the Liabilities referred to in Section 8.5(a), above (less those amounts which are to be netted out, as provided therein) provided, however, in the event that
(i) any Default has occurred and is continuing; and
(ii) one or more L/Cs and Banker's Acceptances are then outstanding, then the Administrative Agent may, and at the direction of the SuperMajority Lenders shall, establish a funded reserve of up to 105% of the aggregate Stated Amounts of such L/C's and such Banker's Acceptances. Such funded reserve shall either be (i) returned to the applicable Borrower provided that no Borrower is in Default or (ii) applied towards the Liabilities in the manner set forth herein following the occurrence of any Event of Default described in Section 11.12 or acceleration following the occurrence of any other Event of Default.
Absence of Litigation There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries, or their officers or directors in their capacity as such, that could have a Material Adverse Effect. Schedule 3(i) contains a complete list and summary description of any pending or, to the knowledge of the Company, threatened proceeding against or affecting the Company or any of its Subsidiaries, without regard to whether it would have a Material Adverse Effect. The Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.
Allocation of Liabilities (a) The parties agree that in the event that liabilities are incurred by any party hereto or any Subsidiary thereof directly relating to, arising out of or resulting from a final, non-appealable judgment being entered, or any settlement permitted hereby being entered into, in connection with the Lawsuit, such liabilities ("IRI Liabilities") shall be allocated among the parties as follows:
(i) ACNielsen agrees to assume exclusive liability for the IRI Liabilities up to the ACN Maximum Amount; and
(ii) Cognizant and D&B each agree to assume exclusive liability for 50% of any IRI Liabilities not payable by ACNielsen pursuant to this Agreement.
(b) No later than five business days after the date on which any IRI Liabilities are incurred, ACNielsen shall give notice to each of Cognizant and D&B of the amount of such IRI Liabilities which ACNielsen will then pay (such amount, the "ACN Payment") and of the amount which ACNielsen has determined to be the ACN Maximum Amount, and ACNielsen will deliver the ACN Payment to Counsel of Record for delivery to the plaintiff in the Lawsuit. Each of Cognizant and D&B agrees to pay to the plaintiff in the Lawsuit on the Payment Date an amount equal to 50% of the excess (if any) of (x) the aggregate amount of the IRI Liabilities over (y) the ACN Payment (such amount, the "Cognizant/D&B Payment"). In the event Cognizant or D&B disputes or disagrees with ACNielsen's determination of the ACN Maximum Amount, the dispute shall be resolved and the ACN Maximum Amount determined as described in Section 2.2.
(c) Upon the payment of the Cognizant/D&B Payment pursuant to the immediately preceding sentence, ACNielsen shall issue a note (an "ACN Note") to each of Cognizant and D&B. The principal amount of each ACN Note shall be equal to the Note Amount, as defined below, and each such ACN Note shall be in the form of Schedule A hereto. Interest on the Note Amount as finally determined for each ACN Note shall accrue at a rate equal to the rate of interest per annum publicly announced from time to time by The Chase Manhattan Bank as its prime rate in effect at its principal office in New York City and shall be payable at maturity. For purposes hereof, the "Note Amount" of each Note shall initially be equal to the Cognizant/D&B Payment, provided, however, (i) that upon the determination of the ACN Maximum Amount, if the Note Amount is greater than 50% of the difference between the ACN Maximum Amount and the ACN Payment, then the Note Amount shall be reduced to and shall equal 50% of such difference, and (ii) that upon receipt of the aggregate amount of proceeds generated by any Recapitalization Plan (as defined below) upon completion thereof in accordance with the first sentence of Section 2.2(g), if the Note Amount (after giving effect to any adjustment pursuant to clause (i)) is greater than 50% of the amount of such proceeds, then the Note Amount shall be reduced to and shall equal 50% of the amount of such proceeds. The Note Amount, together with accrued and unpaid interest thereon, shall be payable upon the earlier of (x) the completion of the Recapitalization Plan, provided, however, that if the Recapitalization Plan is structured to generate proceeds which are receivable by ACNielsen at different times without being contingent upon the completion of any other aspect of the Recapitalization Plan, then at each time that proceeds are so received, 50% of such proceeds shall be payable to each of Cognizant and D&B, and the receipt by Cognizant and D&B of their respective share of such proceeds shall reduce the then applicable Note Amount accordingly, and (y) the declaration by the Payee of an ACN Note (as defined therein) that such Note Amount and interest thereon are immediately due and payable in accordance with the terms of such ACN Note upon determination being made under Section 2.2(g) hereof that ACNielsen has not exercised its good faith best efforts to implement the Recapitalization Plan as soon as practicable, or as otherwise provided by such ACN Note.
(d) Immediately after the Payment Date, ACNielsen agrees to grant to, and to cause each of its Subsidiaries to grant to, Cognizant and D&B, as collateral security for the payment and performance of ACNielsen's obligations under the ACN Notes and otherwise to indemnify Cognizant and D&B against any IRI Liabilities as required by this Article II, a perfected first priority security interest in all of its tangible and intangible assets (including, without limitation, intellectual property, real property and all of the capital stock of each of its direct and indirect domestic subsidiaries and first-tier foreign subsidiaries), to the extent permitted by any other bona fide security or other similar agreements with third-parties not controlled by ACNielsen or any of its Affiliates, pursuant to such documents (the "Security Documents") as Cognizant and D&B shall deem reasonably necessary or advisable to grant to them a perfected first priority lien on such assets. Each of the Security Documents shall be in form and substance reasonably satisfactory to Cognizant and D&B, shall contain terms and conditions which are usual and customary for similar documents delivered in secured financings and shall include guarantees executed and delivered by each of ACNielsen's Subsidiaries which shall be secured by the security interests granted by such Subsidiaries pursuant to the Security Documents. Without limiting the foregoing, ACNielsen agrees to take, and to cause each of its Subsidiaries to take, all actions necessary or advisable to cause the liens granted pursuant to the Security Documents to be duly perfected in accordance with all applicable requirements of law, including, without limitation, the filing of financing statements in such jurisdictions as may be requested by Cognizant and D&B and the delivery to Cognizant and D&B (or their representative) of any certificates representing pledged stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of ACNielsen or the relevant Subsidiary.
Absence of Undisclosed Liabilities Priveco does not have any material Liabilities or obligations either direct or indirect, matured or unmatured, absolute, contingent or otherwise that exceed $5,000, which:
(a) are not set forth in the Priveco Financial Statements or have not heretofore been paid or discharged;
(b) did not arise in the regular and ordinary course of business under any agreement, contract, commitment, lease or plan specifically disclosed in writing to Pubco; or
(c) have not been incurred in amounts and pursuant to practices consistent with past business practice, in or as a result of the regular and ordinary course of its business since the date of the last Priveco Financial Statements