Common use of Financial Condition Clause in Contracts

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31, 1996, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 3 contracts

Samples: Lease Agreement (Atlas Air Inc), Lease Agreement (Atlas Air Inc), Lease Agreement (Atlas Air Inc)

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Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 1996, 1996 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young, a copy of Lessee which has been furnished to the Obligee, fairly and accurately present the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended. (b) In the event the Issuance Date occurs after May 15, (ii) the 1997: The unaudited consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at June 30March 31, 1997 1997, and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP , a copy of which has been delivered to the Obligee, fairly and fairly present accurately presents the consolidated financial position (on a consolidated and, where applicable, consolidating basis) condition of the entities described in such financial statements Company and its con- solidated Subsidiaries as at the respective dates thereof such date, and the consolidated results of their operations and their consolidated cash flows for the three months, then ended (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end adjustments) and a Responsible Officer has so certified to the Obligee. (c) All such financial statements described in clauses (a) and (b) above, including the related schedules and notes thereto, have been prepared in accordance with GAAP ap- plied consistently throughout the periods involved (except for such inconsistencies as approved by such accountants or Respon- sible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward for- ward or long-term commitment that commitment, including any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which or in any such case is material in relation to Schedule 4.1. Since December 31, 1996, there has been no sale, transfer or other disposition or agreement therefor by the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Company or any of its Subsidiariesconsolidated Subsidiaries of any ma- terial part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) which is material in rela- tion to the consolidated financial condition of the Company and its consolidated Subsidiaries at December 31, 1996, except as described in Schedule 4.1 or consented to in writing by the Obligee in its sole discretion. (Bd) Except The three-year Management Business Plan update for the period 1996-1998 delivered to the Obligee prior to the date hereof (i) was prepared in good faith upon assumptions believed by the Company to be reasonable, it being understood that the projections therein contained as fully disclosed in to future events are subject to certain uncertainties and contingencies which are beyond the financial statements delivered pursuant to Section 5(c)(A), there were as control of the Initial Borrowing Date Company and may be significant, and thus no liabilities or obligations with respect to Lessee assurance can be given that such projections will be realized, and its Subsidiaries (ii) presents fairly, in all material respects, the actual results of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As operations of the Initial Borrowing Date, Lessee does not know of any basis Company and Subsidiar- ies for the assertion against it period from January 1, 1996 through the date thereof, in accordance with GAAP, subject to recurring year-end audit adjustments and the absence of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholefootnotes.

Appears in 3 contracts

Samples: Secured Agreement (Apollo Real Estate Advisors Ii L P), Secured Agreement (Ap-Agc LLC), Secured Agreement (Apollo Real Estate Investment Fund Ii L P)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following The audited consolidated financial statements and information: (i) of Borrower as of the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December Fiscal Year ended March 31, 19962017, as included in the Borrower’s Annual Report on Form 10-K filed with the SEC, and the related Borrower’s consolidated and consolidating quarterly financial statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at Fiscal Quarter ending on or about June 30, 1997 and 2017, as included in the related unaudited consolidated and consolidating statements of incomeBorrower’s Quarterly Report on Form 10-Q filed with the SEC (collectively, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were “Financial Statements”), all heretofore furnished to the Lender, have been prepared in conformity accordance with GAAP (except in the case of quarterly statements, absent customary year-end adjustments) consistently applied throughout the periods indicated are all true and correct in all material respects and present fairly present the financial position (on a consolidated and, where applicable, consolidating basis) condition at the date of the entities described in such said financial statements as at the respective dates thereof and the results of operations and cash flows (for the fiscal period then ending. The Borrower as of June 30, 2017, on a consolidated andbasis, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will did not following the Initial Borrowing Date) have any Contingent Obligationsignificant liabilities, contingent liability or liability otherwise, including liabilities for taxes, long-term lease Taxes or any unusual forward or long-term commitment that is commitments which were not reflected disclosed by or reserved against in the foregoing financial statements Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Loan Parties. Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A)on Schedule 4.6, there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries date of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does Loan Parties do not know of any basis for the assertion against it any of the Loan Parties of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to this Section 5(c)(A) which4.6 that, either individually or in the aggregate, could reasonably be expected to be material have a Material Adverse Effect. (b) On and as of the date of this Agreement, and after giving effect to Lessee all Indebtedness (including the Loans) and its Subsidiaries Liens created by the Loan Parties in connection herewith, (i) the sum of the assets, at a fair valuation, of the Borrower (standing alone) and the Loan Parties (taken as a whole) will exceed its debts, (ii) the Borrower (standing alone) and the Loan Parties (taken as a whole) has and have not incurred and does or do not intend to incur, and does or do not believe that it or they will incur, debts beyond its or their ability to pay such debts as such debts mature, and (iii) the Borrower (standing alone) and the Loan Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 4.6(b), “debt” means any liability on a claim, and “claim” means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 2 contracts

Samples: Credit Facility Agreement (Transcat Inc), Credit Facility Agreement (Transcat Inc)

Financial Condition. (Aa) Lessee The Borrower has heretofore delivered furnished to Lessor, Agent and Lenders, the following financial statements and information: (i) the each Lender an audited consolidated and consolidating balance sheets sheet of Lessee the Borrower and its Subsidiaries as at December 31, 1996, 1996 and the notes thereto and the related consolidated and consolidating statements of income, stockholders' equity and cash flows for the Fiscal Year then ended as examined and certified by Xxxxxx Xxxxxxxx LLP, and unaudited consolidated interim financial statements of Lessee the Borrower and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consisting of a consolidated balance sheet and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows flows, in each case without notes, for and as of Lessee the end of the nine month period ending September 30, 1997. Except as set forth therein, such financial statements (including the notes thereto) present fairly the financial condition of the Borrower and its Subsidiaries as of the end of such Fiscal Year and nine-month period and results of their operations and the changes in stockholders' equity for the three months Fiscal Year and interim period then ended. All such statements were prepared , all in conformity with GAAP and fairly present the financial position (applied on a consolidated andConsistent Basis, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subjectsubject however, in the case of any such unaudited interim statements to year end audit adjustments; (b) since December 31, 1996, there has been no material adverse change in the condition, financial statementsor otherwise, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor of the Borrower or any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operationsbusinesses, properties, assetsperformance, condition (financial prospects or otherwise) operations of the Borrower or prospects of Lessee or any of its Subsidiaries., nor have such businesses or properties been materially adversely affected as a result of any fire, explosion, earthquake, accident, strike, lockout, combination of workers, flood, embargo or act of God; and (Bc) Except except as fully disclosed set forth in the financial statements delivered pursuant referred to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not duein SECTION 7.6(a) which, either individually or in aggregateSCHEDULE 7.6 or permitted by SECTION 9.5, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Dateneither Borrower nor any Subsidiary has incurred, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed other than in the financial statements delivered pursuant to Section 5(c)(A) whichordinary course of business, either individually any material Indebtedness, Contingent Obligation or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeother commitment or liability which remains outstanding or unsatisfied.

Appears in 2 contracts

Samples: Credit Agreement (Coca Cola Bottling Group Southwest Inc), Credit Agreement (Texas Bottling Group Inc)

Financial Condition. (Aa) Lessee The Company has heretofore delivered furnished to Lessor, the Administrative Agent and Lenders, the following financial statements and information: (ia) the audited consolidated Consolidated balance sheet of the Company and consolidating its Subsidiaries and the related audited statements of income, retained earnings and cash flow of the Company and its Subsidiaries audited by KPMG, LLP, the Company’s independent registered public accounting firm, for the fiscal year ended July 31, 2008 and (b) the unaudited Consolidated balance sheets sheet of Lessee the Company and its Subsidiaries as at December 31, 1996, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June April 30, 1997 and 2009, the related unaudited consolidated and consolidating Consolidated statements of income, stockholders' equity and cash flows income of Lessee the Company and its Subsidiaries for the three months then endedand nine-month periods ended April 30, 2009 and the cash flow statement for the nine-month period ended April 30, 2009 (collectively, the “financial statements”). All such The financial statements were prepared in conformity with GAAP and Generally Accepted Accounting Principles and, to the Company’s knowledge, fairly present the consolidated financial position (on a consolidated and, where applicable, consolidating basis) and results of operations of the entities described in Company and its Subsidiaries as of the date of such financial statements as at and for the respective dates thereof and the results of operations and cash flows (on a consolidated periods to which they relate and, where applicable, consolidating basis) since the date of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected except as disclosed in the foregoing financial statements or Company’s Quarterly Report to the notes thereto Securities and which Exchange Commission on Form 10-Q filed June 3, 2009 (the “Latest 10-Q”), no material adverse change in any such case is material in relation to the business, operations, properties, assets, operations or assets or condition (financial or otherwise) of the Company and its Subsidiaries has occurred. There are no material obligations or prospects material liabilities, contingent or otherwise, of Lessee the Company and its Subsidiaries which are not reflected in such financial statements other than obligations incurred in the ordinary course of the Company’s business since the date of such financial statements, disclosed in the Latest 10-Q or specifically disclosed elsewhere in this Agreement or any of its Subsidiariesschedule hereto, subject, however, to normal year-end adjustments with respect to the unaudited financial statements referred to above. (Bb) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as The Company and each of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that Guarantors is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeSolvent.

Appears in 2 contracts

Samples: Credit Agreement (Comtech Telecommunications Corp /De/), Credit Agreement (Comtech Telecommunications Corp /De/)

Financial Condition. The Company has furnished to each Lender: (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, The consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at of December 31, 19962012, and the related consolidated and consolidating statements of income, stockholders' equity operations and cash flows of Lessee and its Subsidiaries members’ capital or deficiency for the fiscal year then endedended on said date, said financial statements having been certified by a Registered Public Accounting Firm of nationally recognized standing reasonably acceptable to the Required Lenders; and (iib) the The unaudited consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at June of September 30, 1997 2013, and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries operations for the three months Quarter then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof referred to above (i) are complete and the results of operations and cash flows correct in all material respects (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such the unaudited financial statementsstatements referred to above, to changes resulting from year‑end and audit adjustments), (ii) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and normal year-end adjustments(iii) fairly present the financial condition of the respective entity or groups of entities which is or are the subject of such financial statements (as stated above), on a consolidated basis, as of the respective dates of the balance sheets included in such financial statements and the results of operations of such entity or groups of entities for the respective periods ended on said dates. Neither Lessee nor None of the Company and its Restricted Subsidiaries had on any of its Subsidiaries has (and will not following the Initial Borrowing Date) have said dates any Contingent Obligationmaterial contingent liabilities, contingent liability or liability liabilities for taxesTaxes, long-term lease or unusual forward or long-term commitment that is not long‑term commitments or unrealized or anticipated losses from any unfavorable commitments or operations which are substantial in amount, except as referred to or reflected or provided for in the foregoing said financial statements of the Company and its consolidated Subsidiaries as of said respective dates or the notes thereto and which in any such case is material in relation as disclosed to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Lenders in writing prior to the Closing Date. Except as fully disclosed to the Lenders in writing prior to the Closing Date, since December 31, 2012, there has been no material adverse change in the financial statements delivered pursuant to Section 5(c)(A), there were condition (from that shown by the respective balance sheet as of December 31, 2012 included in said financial statements) or the Initial Borrowing Date no liabilities businesses or obligations with respect to Lessee operations of the Company and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its the Restricted Subsidiaries taken as a whole. As of whole on a pro forma combined basis (after giving effect to the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected Indebtedness contemplated to be material to Lessee incurred on the Closing Date and its Subsidiaries taken as a wholethe use of proceeds thereof).

Appears in 2 contracts

Samples: Credit Agreement (AMC Networks Inc.), Credit Agreement (AMC Networks Inc.)

Financial Condition. (Aa) Lessee has heretofore delivered to LessorAnnexed hereto as Schedule 4.5(a) are copies of the Financial Statements. The Financial Statements are complete and correct in all material respects, Agent have been prepared in accordance with GAAP and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31, 1996, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP the practices consistently applied by the Company and its Subsidiary without modification of the accounting principles used in the preparation thereof and present fairly present in all material respects the financial position (on a consolidated andposition, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein Company and its Subsidiary as at the dates and for each of the periods then endedindicated, subject, subject in the case of any such unaudited financial statementsthe Interim Financial Statements, to changes resulting from audit normal and normal recurring year-end adjustmentsadjustments and the absence of notes. Neither Lessee nor any The Financial Statements were prepared from the Books and Records and contain and reflect all necessary adjustments and accruals for a fair and accurate presentation of the financial condition of the Company and its Subsidiaries has (Subsidiary as of their respective dates in all respects. The Company and will not following its Subsidiary have no off balance sheet Indebtedness or other obligations. The Accounts Receivable have arisen in the Initial Borrowing Date) have any Contingent Obligationordinary course of business and, contingent liability to the knowledge of the Company, there are no facts or liability for taxes, long-term lease or unusual forward or long-term commitment other information that is not indicates that the reserves and accruals reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation Financial Statements are inadequate as to the businessdate thereof. The accounts payable shown on the Financial Statements and Books and Records are valid and genuine, operationshave arisen solely out of bona fide sale of products, properties, assets, condition (financial or otherwise) or prospects and other business transactions in the ordinary course of Lessee or any of its Subsidiariesbusiness consistent with past practice in each case with persons other than Affiliates. (Bb) Except as fully disclosed for (i) the liabilities reflected in the financial statements delivered pursuant to Section 5(c)(AFinancial Statements, (ii) trade payables and accrued expenses incurred since the Interim Balance Sheet Date in the ordinary course of business, none of which are material, (iii) executory contract obligations under (x) Material Contracts listed on Schedule 4.10(a), there were as of and/or (y) Contracts not required to be listed on Schedule 4.10(a), and (iv) the Initial Borrowing Date no liabilities set forth on Schedule 4.5(b) attached hereto, neither the Company nor its Subsidiary has any material liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether accrued, absolute, accruedcontingent, contingent known, unknown or otherwise otherwise, and whether or not due) which, either individually or in aggregate, could reasonably be expected of a nature required to be material to Lessee reflected or reserved against in a balance sheet in accordance with GAAP). (c) Except as otherwise set forth on Schedule 4.5(c), the inventory of the Company and its Subsidiaries taken Subsidiary as a whole. As of the Initial Borrowing Date, Lessee does not know Closing Date shall consist of any basis items that are usable and saleable in the ordinary and usual course of business for the assertion purposes for which intended, except to the extent written down or reserved against it of any liability or obligation of any nature whatsoever that is not fully disclosed in on the financial statements delivered pursuant to Section 5(c)(A) whichActual Closing Balance Sheet. Except as otherwise set forth on Schedule 4.5(c), either individually or in the aggregate, could reasonably be expected to be material to Lessee Company’s and its Subsidiaries taken as a wholeSubsidiary’s inventory is valued on the Company’s and its Subsidiary’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality and slow-moving materials have been written down in accordance with GAAP.

Appears in 2 contracts

Samples: Stock Purchase and Sale Agreement, Stock Purchase and Sale Agreement (Smith & Wesson Holding Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent The consolidated balance sheet and Lenders, statement of consolidated capitalization of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Borrower and its Subsidiaries consolidated Subsidiaries, if any, as at September 30, 2011 and the related consolidated statements of income, cash flows, common stockholders’ equity and income taxes of the Borrower and its consolidated Subsidiaries, if any, for the fiscal year ended on September 30, 2011, with the opinion thereon of Deloitte & Touche LLP, and the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries, if any, as at December 31, 1996, 2011 and the related consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee the Borrower and its Subsidiaries consolidated Subsidiaries, if any, for the applicable three-month period ended on such date, heretofore furnished to each of the Lenders are complete and correct and fairly present the consolidated financial condition of the Borrower and its consolidated Subsidiaries, if any, as at said date and the results of their operations for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position applicable three-month period ended on said dates (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statementsstatements as at December 31, 2011 to changes resulting from audit and normal year-end audit adjustments), all in accordance with GAAP and practices applied on a consistent basis. Neither Lessee the Borrower nor any of its Material Subsidiaries has (and will not following the Initial Borrowing Date) have had on said dates any Contingent Obligationmaterial contingent liabilities, contingent liability or liability liabilities for taxes, long-term lease or unusual forward or long-term commitment that is not commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariessaid balance sheets as at said dates. (Bb) Except as fully disclosed Since September 30, 2011, there has been no material adverse change in the consolidated financial statements delivered pursuant to Section 5(c)(A)condition or operations, there were as of or the Initial Borrowing Date no liabilities prospects or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries business taken as a whole. As , of the Initial Borrowing DateBorrower and its consolidated Subsidiaries, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever if any, from that is not fully disclosed set forth in the said financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeat said date.

Appears in 2 contracts

Samples: Credit Agreement (WGL Holdings Inc), Credit Agreement (WGL Holdings Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets sheet of Lessee JIC ------------------- and its consolidated Subsidiaries as at December 31June 30, 1996, 1996 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Xxxxxx Xxxxxxxx L.L.P., copies of Lessee which have heretofore been furnished to each Lender, present fairly in all material respects the consolidated financial condition of JIC and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (ii) except as approved by such accountants and as disclosed therein). Neither JIC, the unaudited Borrower nor any of their consolidated and consolidating balance sheets Subsidiaries had, as of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income1996, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the schedules or notes thereto thereto. Except as set forth on Schedule 5.1, ------------ during the period from June 30, 1996 to and which in including the date hereof there has been no sale, transfer or other disposition by JIC or any such case is of its consolidated Subsidiaries of any material part of its business, assets or property and no purchase or other acquisition of any business, assets or property (including any Capital Stock of any other Person) material in relation to the businessconsolidated financial condition of JIC and its consolidated Subsidiaries at June 30, operations1996, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariesother than the Stock Purchase. (Bb) Except The financial statements of the Borrower and the Restricted Subsidiaries and other information most recently delivered under Sections 7.1(a) --------------- and (b) were prepared in accordance with GAAP and present fairly the --- consolidated financial condition, results of operations, and cash flows of the Borrower and the Restricted Subsidiaries as fully disclosed of, and for the portion of the fiscal year ending on the date or dates thereof (subject in the financial case of interim statements delivered pursuant only to Section 5(c)(Anormal year-end audit adjustments). There were no material liabilities, there were direct or indirect, fixed or contingent, of the Borrower or the Restricted Subsidiaries as of the Initial Borrowing Date no liabilities date or obligations with respect to Lessee and its Subsidiaries dates of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or such financial statements which are not due) which, either individually reflected therein or in aggregatethe notes thereto. Except for transactions directly related to, or specifically contemplated by, the Loan Documents, there have been no changes in the consolidated financial condition of the Borrower or the Restricted Subsidiaries from that shown in such financial statements after such date which could reasonably be expected to be material to Lessee and its Subsidiaries taken as have a whole. As of Material Adverse Effect, nor has the Initial Borrowing Date, Lessee does not know of Borrower or any basis for the assertion against it of Restricted Subsidiary incurred any liability (including, without limitation, any liability under any Environmental Law), direct or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) whichindirect, either individually fixed or in the aggregatecontingent, after such date which could reasonably be expected to be material to Lessee and its Subsidiaries taken as have a wholeMaterial Adverse Effect.

Appears in 2 contracts

Samples: Credit Agreement (Cable Tv Fund 12-C LTD), Credit Agreement (Jones Intercable Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets sheet of Lessee Kimco and its Subsidiaries subsidiaries as at December 31, 1996, 2007 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the respective fiscal years ended on such dates, reported on by PricewaterhouseCoopers, LLP, copies of Lessee which have heretofore been furnished to the Lenders, are complete and correct and present fairly the consolidated financial condition of Kimco and its Subsidiaries subsidiaries as at such dates, as applicable and the consolidated results of their operations and their consolidated cash flows for the applicable fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee Kimco and its Subsidiaries subsidiaries as at June 30, 1997 2008 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the three-month period ended on such date, certified by a Responsible Officer of Lessee Kimco, copies of which have heretofore been furnished to the Lenders, are complete and correct and present fairly the consolidated financial condition of Kimco and its Subsidiaries subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months three-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved. Except as set forth on Schedule 4.1, neither Kimco nor any of its Subsidiaries has (and will not following the Initial Borrowing Consolidated Entities has, at the Effective Date) have , any Contingent material Indebtedness, Guarantee Obligation, contingent liability or liability for taxes, long-term lease or any unusual forward or long-term commitment that commitment, including any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto, other than Indebtedness and which Guarantee Obligations incurred in any such case is material in relation to connection with the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its SubsidiariesTransactions. (Bb) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as The credit rating of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that Kimco's unsecured debt is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeless than BBB-/Baa3.

Appears in 2 contracts

Samples: Credit Agreement (Kimco Realty Corp), Credit Agreement (Kimco Realty Corp)

Financial Condition. (A1) Lessee has heretofore delivered to Lessor, Agent and Lenders, The consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Guarantor and its consolidated Subsidiaries as at December 31, 1996, 2019 and the related consolidated and consolidating statements of incomeincome for the fiscal year ended on such date, stockholders' equity reported on by the Guarantor's independent public accountants, copies of which have heretofore been furnished to the Administrative Agent, are complete and cash flows correct, in all material respects, and present fairly the financial condition of Lessee the Guarantor and its consolidated Subsidiaries as at such date, and the results of operations for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited Such financial statements, including any related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the external auditors and as disclosed therein, if any). (2) Except as disclosed in Schedule V attached hereto, neither the Guarantor nor its consolidated Subsidiaries had, at the date of the most recent balance sheet referred to changes resulting from audit and normal year-end adjustments. Neither Lessee nor above, any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial guarantee obligation, contingent liability (as defined in accordance with GAAP), or liability for taxes, any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto, except for guarantees, indemnities or similar obligations of the Guarantor or a consolidated Subsidiary supporting obligations of one Subsidiary to another Subsidiary. (3) During the period from December 31, 2019 to and which including the date hereof, except as disclosed in Schedule V attached hereto, neither the Guarantor nor its consolidated Subsidiaries has sold, transferred or otherwise disposed of any such case is material part of its business or property, nor has it purchased or otherwise acquired any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Guarantor and its consolidated Subsidiaries of any nature whatsoever (whether absoluteat December 31, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole2019.

Appears in 2 contracts

Samples: Guaranty (Bungeltd), Guaranty (Bungeltd)

Financial Condition. (Aa) Lessee The Borrower has heretofore delivered to Lessor, Agent and Lendersthe Agent, the following financial statements Board and information: the Loan Administrator (i) the audited consolidated and consolidating balance sheets of Lessee the Borrower and its Subsidiaries Group as at December 31, 19962004, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee the Borrower and its Subsidiaries Group for the fiscal year Fiscal Year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee the Borrower and its Subsidiaries Group as at June 30, 1997 2005 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee the Borrower and its Subsidiaries Group for the three six months then ended, and (iii) audited consolidated balance sheets of AWA Holdings and AWA as at December 31, 2004, and the related consolidated statements of income, stockholders' equity and cash flows of AWA Holdings and AWA for the Fiscal Year then ended, and (iv) the unaudited consolidated balance sheets of AWA Holdings and AWA as at June 30, 2005 and the related unaudited consolidated statements of income, stockholders' equity and cash flows of AWA Holdings and AWA for the six months then ended. All such financial statements were prepared in conformity accordance with GAAP (except that any unaudited financial statements are subject to normal year-end adjustments and may not be accompanied by footnotes) and fairly present present, in all material respects, the consolidated financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements Persons as at the respective dates date thereof and the consolidated results of operations and cash flows of such Person for the period then ended. (on a consolidated and, where applicable, consolidating basisb) After giving effect to the Consummation of the entities described therein for each of Plan, (i) the periods then endedObligors taken as a whole are Solvent and (ii) no Obligor has any material liability, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, including reasonably likely contingent liability or liability for taxes, long-term lease or any unusual forward or long-term commitment of a type required to be reflected in financial statements prepared in conformity with GAAP, that is not reflected in the foregoing projections and pro forma financial statements or information delivered pursuant to clause (l) of Article III or, in the notes thereto and which case of a Reporting Obligor, taken into account in any the preparation of the annual report on Form 10-K for the fiscal year ended December 31, 2004 of such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its SubsidiariesReporting Obligor. (Bc) Except Each Reporting Obligor maintains disclosure controls and procedures (as fully defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Obligors and has (i) caused such disclosure controls and procedures to be designed to ensure that material information relating to the Obligors is reported internally, (ii) caused such internal controls over financial reporting to be designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (iii) evaluated the effectiveness of such disclosure controls and procedures and presented as required in the Reporting Obligors' Annual Report on Form 10-K for the Fiscal Year ended December 31, 2004, conclusions about the effectiveness of the disclosure controls and procedures, and (iv) disclosed as required in such Annual Report any change in such internal control over financial reporting that occurred during the relevant reporting period that has materially affected, or is reasonably likely to materially affect, their internal control over financial reporting. (d) Other than as disclosed on Schedule 4.3(d) or as disclosed in the financial statements delivered pursuant to Section 5(c)(A)Annual Report on Form 10-K for the Fiscal Year ended December 31, there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries 2004 of any nature whatsoever Obligor, no Obligor is a party to any "off-balance sheet arrangement" (whether absolutewithin the meaning of Item 303(a)(4) of Regulation S-K under the Securities Act and the Exchange Act, accruedas amended by SEC Release No. 33-8182 (January 28, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole2003)).

Appears in 2 contracts

Samples: Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee the Parent Borrower as at December 31, 2022, and the related consolidated statements of income, stockholders’ equity and cash flows for the fiscal year ended on such date, reported on by and accompanied by an unqualified report from Xxxxx & Young LLP, present fairly, in all material respects, the consolidated financial condition of the Parent Borrower and its Subsidiaries as at December 31, 1996such date, and the related consolidated results of its operations and consolidating statements of income, stockholders' equity and its consolidated cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Parent Borrower and its Subsidiaries as at June 30, 1997 the last day of any subsequent fiscal quarter ended at least 45 days prior to the Closing Date and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows for the three-month periods ended on such dates, present fairly, in all material respects, the consolidated financial condition of Lessee the Parent Borrower and its Subsidiaries as at such dates, and the consolidated results of its operations and its consolidated cash flows for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the three-month periods then ended, subject, in the case of any such unaudited financial statements, ended (subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee nor All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). (b) As of the Closing Date, no Group Member has any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial Guarantee Obligations, contingent liability or liability liabilities and liabilities for taxes, or any long-term lease leases or unusual forward or long-term commitment commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that is are required to be reflected in financial statements in accordance with GAAP and are not reflected in the foregoing most recent financial statements or referred to in paragraph (b). During the notes thereto period from December 31, 2022 to and which in including the Closing Date there has been no Disposition by any such case is Group Member of any material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as part of the Initial Borrowing Date no liabilities business or obligations with respect to Lessee and its Subsidiaries property of any nature whatsoever (whether absolutethe Group Members, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed whole (other than in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeordinary course of business).

Appears in 2 contracts

Samples: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)

Financial Condition. (A) Lessee The Borrower has heretofore delivered to Lessor, Agent and the Lenders, at the following financial statements and information: (i) the Lenders’ request, the, as applicable, audited or unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31sheets, 1996, and the related consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee the Borrower and its Subsidiaries subsidiaries as at and for the fiscal year then endedFiscal Year ended December 31, (ii) 2020 and for the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at Fiscal Quarter ended June 30, 1997 2021, it being understood and agreed that the related filing of the Borrower’s Form 10-K for such Fiscal Year and Form 10-Q for such Fiscal Quarter with the SEC shall constitute such delivery. Subject, in the case of such unaudited consolidated statements, to the absence of footnotes and consolidating statements of incomecustomary year-end audit adjustments, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All all such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee the Borrower nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment not incurred in the ordinary course of business that as of the Closing Date, is not reflected in the foregoing financial Borrower’s audited consolidated balance sheets, statements of income and cash flows of the Borrower and its subsidiaries as at and for the Fiscal Year ended December 31, 2020 or in the Borrower’s unaudited consolidated balance sheets, statements of income and cash flows of the Borrower and its subsidiaries as at the Fiscal Quarter ended June 30, 2021 or the notes thereto and which thereto, or described in any such case is material in relation to the businessSchedule 7.01, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could that would reasonably be expected to be material to Lessee and its Subsidiaries taken as have a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeMaterial Adverse Effect.

Appears in 2 contracts

Samples: Credit Agreement (Mosaic Co), Credit Agreement (Mosaic Co)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets sheet of Lessee Kimco and its Subsidiaries subsidiaries as at December 31, 19962006 and December 31, 2005 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the respective fiscal years ended on such dates, reported on by PricewaterhouseCoopers, LLP, copies of Lessee which have heretofore been furnished to the Lenders, are complete and correct and present fairly the consolidated financial condition of Kimco and its Subsidiaries subsidiaries as at such dates, as applicable and the consolidated results of their operations and their consolidated cash flows for the applicable fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee Kimco and its Subsidiaries subsidiaries as at June 30, 1997 2007 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the three-month period ended on such date, certified by a Responsible Officer of Lessee Kimco, copies of which have heretofore been furnished to the Lenders, are complete and correct and present fairly the consolidated financial condition of Kimco and its Subsidiaries subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months three-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved. Except as set forth on Schedule 4.1, neither Kimco nor any of its Subsidiaries has (and will not following the Initial Borrowing Consolidated Entities has, at the Effective Date) have , any Contingent material Indebtedness, Guarantee Obligation, contingent liability or liability for taxes, long-term lease or any unusual forward or long-term commitment that commitment, including any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except as set forth on Schedule 4.1, during the period from December 31, 2006 to and which in including the Effective Date there has been no sale, transfer or other disposition by Kimco or any such case is of the Consolidated Entities of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the businessconsolidated financial condition of Kimco and the Consolidated Entities at December 31, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries2006. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 2 contracts

Samples: Credit Agreement (Kimco Realty Corp), Credit Agreement (Kimco Realty Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Borrower and its consolidated Subsidiaries as at December 31, 19962011 and December 25, 2010, respectively, and the related consolidated and consolidating statements of income, stockholders' equity operations and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by BDO Xxxxxxx, LLP, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Borrower and its consolidated Subsidiaries as at June 30such dates, 1997 and the related unaudited consolidated and consolidating statements results of income, stockholders' equity their operations and of their cash flows of Lessee and its Subsidiaries for the three months fiscal years then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, were, as of the date prepared, prepared in accordance with GAAP applied consistently throughout the periods involved (except as otherwise expressly noted therein, and show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and each of its Subsidiaries as of the dates thereof, including liabilities for taxes, material commitments and Indebtedness. Neither Lessee the Borrower nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheets referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxes, or any material long-term lease or unusual material forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is thereto. (b) As of the date hereof, there are no material in relation to liabilities or obligations of the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. , whether direct or indirect, absolute or contingent, or matured or unmatured, other than (Bi) Except as fully disclosed or provided for in the financial statements delivered pursuant and notes thereto which are referred to Section 5(c)(A)above, there were as or (ii) which are disclosed elsewhere in this Agreement or in the Schedules hereto, or (iii) arising in the ordinary course of business since December 31, 2011 or (iv) created by this Agreement. As of the Initial Borrowing Date no liabilities or obligations date hereof, the written information, exhibits and reports furnished by the Borrower to the Lenders in connection with respect to Lessee and its Subsidiaries the negotiation of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed are complete and correct in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be all material to Lessee and its Subsidiaries taken as a wholerespects.

Appears in 2 contracts

Samples: Credit Agreement (Henry Schein Inc), Credit Agreement (Henry Schein Inc)

Financial Condition. (A) Lessee The Borrower has heretofore delivered to Lessor, Agent and the Lenders, at the following financial statements and information: (i) the Lenders’ request, the, as applicable, audited or unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31sheets, 1996, and the related consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee the Borrower and its Subsidiaries subsidiaries as at and for the fiscal year then endedFiscal Year ended December 31, (ii) 2015 and for the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June Fiscal Quarter ended September 30, 1997 2016, it being understood and agreed that the related filing of the Borrower’s Form 10-K for such Fiscal Year and Form 10-Q for such Fiscal Quarter with the SEC shall constitute such delivery. Subject, in the case of such unaudited consolidated statements, to the absence of footnotes and consolidating statements of incomecustomary year-end audit adjustments, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All all such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee the Borrower nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment not incurred in the ordinary course of business that as of the Closing Date, is not reflected in the foregoing financial Borrower’s audited consolidated balance sheets, statements of income and cash flows of the Borrower and its subsidiaries as at and for the Fiscal Year ended December 31, 2015 or in the Borrower’s unaudited consolidated balance sheets, statements of income and cash flows of the Borrower and its subsidiaries as at the Fiscal Quarter ended September 30, 2016 or the notes thereto and which thereto, or described in any such case is material in relation to the businessSchedule 7.1, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could that would reasonably be expected to be material to Lessee and its Subsidiaries taken as have a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeMaterial Adverse Effect.

Appears in 1 contract

Samples: Credit Agreement (Mosaic Co)

Financial Condition. (A) Lessee Company has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: at Lenders' request, (i) the audited consolidated and consolidating balance sheets sheet of Lessee Company and its Subsidiaries as at December October 31, 1996, 1996 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee Company and its Subsidiaries as at June January 31, 1997, April 30, 1997 and July 31, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the three months periods then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has Company does not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets or condition (financial or otherwise) of Company or any of its Subsidiaries. Company has heretofore delivered to Lenders, at Lenders' request, (i) the audited consolidated balance sheet of Xxxxxxxx-Xxxxx and its Subsidiaries as at December 31, 1996 and the related consolidated statements of income, stockholders' equity and cash flows of Xxxxxxxx-Xxxxx and its Subsidiaries for the Xxxxxxxx- Xxxxx Fiscal Year then ended and (ii) the unaudited consolidated balance sheet of Xxxxxxxx-Xxxxx and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated statements of income, stockholders' equity and cash flows of Xxxxxxxx- Xxxxx and its Subsidiaries for the six months then ended. All such statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position (on a consolidated basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Xxxxxxxx-Xxxxx does not (and will not following the funding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Xxxxxxxx-Xxxxx or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Urs Corp /New/)

Financial Condition. (Aa) Lessee has heretofore delivered to LessorThe condensed, Agent and Lenders, consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at December 31, 1996, 1996 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Deloitte & Touche LLP, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended. The unaudited condensed, (ii) consolidated balance sheet of the unaudited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at June September 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the nine-month period ended on such date, certified by a Responsible Officer, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months nine-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). (b) Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. (c) During the period from December 31, 1996 to and which in including the date hereof, there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Company and its consolidated Subsidiaries of any nature whatsoever (whether absoluteat December 31, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1996.

Appears in 1 contract

Samples: Credit Agreement (Hexcel Corp /De/)

Financial Condition. (Aa) Lessee The Company has heretofore delivered furnished to Lessor, Agent and Lenders, each of the following financial statements and information: (i) the audited Banks consolidated and consolidating balance sheets of Lessee the Company and its Subsidiaries as at December 31, 1996, 1995 and the related consolidated and consolidating statements of income, stockholdersshareholders' equity and cash flows of Lessee the Company and its Subsidiaries for the fiscal year then endedended on said date, with the opinion thereon (iiin the case of said consolidated balance sheet and statements) of Deloitte & Touche LLP, and the unaudited consolidated and consolidating balance sheets of Lessee the Company and its Subsidiaries as at June 30, 1997 1996 and the related unaudited consolidated and consolidating statements of income, stockholdersshareholders' equity and cash flows of Lessee the Company and its Subsidiaries for the three months then endedsix-month period ended on such date. All such financial statements were prepared present fairly, in conformity with GAAP and fairly present all material respects, the consolidated financial position (on a consolidated and, where applicable, consolidating basis) condition of the entities described Company and its Subsidiaries, and (in the case of said consolidating financial statements) the respective unconsolidated financial condition of the Company and of each of its Subsidiaries, as at said dates and the consolidated results of their operations, and (in the case of said consolidating statements) the respective unconsolidated results of operations of the Company and of each of its Subsidiaries, for the fiscal year and six-month period ended on said dates (subject, in the case of such financial statements as at June 30, 1996, to normal year-end audit adjustments), all in accordance with generally accepted accounting principles and practices applied on a consistent basis. None of the Company nor any of its Subsidiaries has on the Restatement Date any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said financial statements (or in the notes thereto) as at said dates. Since December 31, 1995, there has Credit Agreement been no material adverse change in the consolidated financial condition, operations, business or prospects of the Company and its Subsidiaries taken as a whole from that set forth in said financial statements as at said date. (b) The Company has heretofore furnished to each of the Banks the annual and quarterly Statutory Statements of the Company (consolidated) and of each of its Insurance Subsidiaries for the fiscal year ended December 31, 1995 and for the quarterly fiscal period ended June 30, 1996 as filed with the Applicable Insurance Regulatory Authority. All such Statutory Statements present fairly, in all material respects, the financial condition of the Company (consolidated) and of each Insurance Subsidiary, respectively, as at the respective dates thereof and the its results of operations through fiscal year ended on December 31, 1995 and cash flows (on a consolidated andthe quarterly fiscal period ended June 30, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject1996, in accordance with statutory accounting practices prescribed or permitted by the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its SubsidiariesApplicable Insurance Regulatory Authority. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Enhance Financial Services Group Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee HCNA and its Subsidiaries as at March 30, 1996 and the related consolidated statements of income and of cash flows for the fiscal year ended on such date, reported on by Coopers & Lybrand, copies of which have heretofore been furnished to each Lenxxx, xxe complete and correct in all material respects and present fairly, in all material respects, the consolidated financial condition of HCNA and its Subsidiaries as at such date, and the consolidated results of their operations and their cash flows for the fiscal year then ended. The unaudited consolidated balance sheets of HCNA and its Subsidiaries as at December 3128, 1996, 1996 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows of Lessee and its Subsidiaries for the fiscal year then endednine-month period ended on such date, (ii) certified by a Responsible Officer of HCNA, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee HCNA and its Subsidiaries as at June 30such date, 1997 and the related unaudited consolidated results of their operations and consolidating statements of income, stockholders' equity and their cash flows of Lessee and its Subsidiaries for the three months nine-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). (b) All such financial statements described in this subsection 7.1, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer of HCNA, and as disclosed therein). Neither Lessee HCNA nor any of its Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except for the Sale/Leaseback Transaction and which in the ECMC Transaction, during the period from March 30, 1996 to and including the Closing Date there has been no sale, transfer or other disposition by HCNA or any such case is of its Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the businesscombined financial condition of NACC, operationsNAMSCO, propertiesInc. and GSL Corporation and their Subsidiaries at March 30, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries1996. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Harris Chemical North America Inc)

Financial Condition. (A) Lessee Company has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: at Lenders' request, (i) the audited consolidated and consolidating balance sheets sheet of Lessee Company and its Subsidiaries as at December October 31, 1996, 1998 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June January 31, 1999 and April 30, 1997 1999 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the three months periods then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-year- end adjustments. Neither Lessee nor any of its Subsidiaries has Company does not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, financial condition (financial or otherwise) or prospects of Lessee Company or any of its Subsidiaries. Company has heretofore delivered to Lenders, at Lenders' request, the audited consolidated balance sheet of DMG and its Subsidiaries as at March 27, 1998 and March 26, 1999 and the related consolidated statements of income, stockholders' equity and cash flows of DMG and its Subsidiaries for the DMG Fiscal Year then ended. All such statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position (on a consolidated basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. DMG does not (and will not following the funding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, financial condition or prospects of DMG or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Urs Corp /New/)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The unaudited pro forma consolidated and consolidating balance sheets sheet of Lessee Intermediate Holding and its Subsidiaries as at December 31September 30, 19962000 (including the notes thereto) (the "SIGNING DATE PRO FORMA BALANCE SHEET"), and copies of which have heretofore been furnished to each Lender, has been prepared based upon the related consolidated and consolidating statements balance sheet of income, stockholders' equity and cash flows of Lessee Citadel Communications and its Subsidiaries for as of September 30, 2000 after giving effect to the fiscal year then endedcapitalization of Intermediate Holding and the Company as contemplated by subsection 11.1(p), the Merger and the transactions contemplated thereby, the Loans hereunder and the use of the proceeds thereof (iiincluding, without limitation, the Tentative Allocation of Purchase Price) and the unaudited payment of related fees and expenses. The Signing Date Pro Forma Balance Sheet presents fairly on a pro forma basis the consolidated and consolidating balance sheets financial position of Lessee Intermediate Holding and its Subsidiaries as at June September 30, 1997 2000 assuming that the events and assumptions specified in the related unaudited consolidated preceding sentence had actually occurred or are true, as the case may be, on that date (except (i) for changes in such financial position which are not materially adverse to the financial position of Citadel Communications and consolidating statements its Subsidiaries, (ii) as provided in the notes thereto and (iii) for the use of incomethe Tentative Allocation of Purchase Price). As of the date of the Signing Date Pro Forma Balance Sheet, stockholders' equity and cash flows none of Lessee Acquisition Co. or, except as disclosed in the Merger Agreement, Citadel Communications and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of had any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial obligation, contingent liability or liability for taxesotherwise, long-term lease or unusual forward or long-term commitment that is which was not reflected therein or in the foregoing financial statements or the notes thereto and which in any such case is would have a material in relation to adverse effect on the business, operationsfinancial condition, assets, liabilities, net assets, properties, assetsresults of operations, condition (financial or otherwise) value or prospects of Lessee Acquisition Co., or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee Material Adverse Effect on Citadel Communications and its Subsidiaries taken as a whole. (ii) The unaudited pro forma consolidated balance sheet of Intermediate Holding and its Subsidiaries as at the last day of the most recent fiscal month (for which financial statements are available) ending no more than 62 days prior to the Closing Date (including the notes thereto) (the "CLOSING DATE PRO FORMA BALANCE SHEET" and, with the Signing Date Pro Forma Balance Sheet, the "PRO FORMA BALANCE SHEETS"), copies of which will be furnished to each Lender on or prior to the Closing Date, will be prepared based upon the consolidated balance sheet of Citadel Communications and its Subsidiaries as of such day after giving effect to the capitalization of Intermediate Holding and the Company as contemplated by subsection 11.1(p), the Merger and the transactions contemplated thereby, the Loans hereunder and the use of the proceeds thereof (including, without limitation, the Tentative Allocation of Purchase Price) and the payment of related fees and expenses. The Closing Date Pro Forma Balance Sheet will present fairly on a pro forma basis the consolidated financial position of Intermediate Holding and its Subsidiaries as at such day assuming that the events and assumptions specified in the preceding sentence had actually occurred or are true, as the case may be, on that date (except (i) for changes in such financial position which are not materially adverse to the financial position of Citadel Communications and its Subsidiaries, (ii) as provided in the notes thereto and (iii) for the use of the Tentative Allocation of Purchase Price). As of the date of the Closing Date Pro Forma Balance Sheet, none of Acquisition Co. or, except as disclosed in the Merger Agreement, Citadel Communications and its Subsidiaries had any material obligation, contingent or otherwise, which was not reflected therein or in the notes thereto and which would have a material adverse effect on the business, financial condition, assets, liabilities, net assets, properties, results of operations, value or prospects of Acquisition Co., or a Material Adverse Effect on Citadel Communications and its Subsidiaries taken as a whole. (i) The audited consolidated balance sheets of each of Citadel Communications and its Subsidiaries and the Company and its Subsidiaries at December 31, 1999 and the related consolidated statements of operations, stockholders' equity and cash flows for the fiscal years ended on such date, reported on by KPMG LLP and (ii) the unaudited consolidated balance sheets of each of Citadel Communications and its Subsidiaries and the Company and its Subsidiaries at September 30, 2000, and the related consolidated statements of operations, stockholders' equity and cash flows for the fiscal periods ended on such date, copies of each of which have heretofore been furnished to each Lender, fairly present in all material respects (except, with respect to interim reports, for normal year-end adjustments) the consolidated financial position of each of Citadel Communications and its Subsidiaries and the Company and its Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the fiscal periods then ended and, in the case of the statements referred to in the foregoing clause (ii), the portion of the fiscal year through such date, in each case, in accordance with GAAP consistently applied throughout the periods involved (except as noted therein). Except as disclosed in the Merger Agreement, neither Citadel Communications nor any of its Subsidiaries has or is subject to any liabilities (absolute, accrued, contingent or otherwise), except liabilities or obligations which do not, individually or in the aggregate, constitute a Company Material Adverse Effect (as defined in the Merger Agreement). (c) Except as set forth in the Merger Agreement, since September 30, 2000 there have not been any event, occurrence, fact, condition, change, development or effect which individually or in the aggregate would have a Company Material Adverse Effect (as defined in the Merger Agreement). (d) Except as set forth in the Merger Agreement, since September 30, 2000 there has been no material adverse change in the business, financial condition, assets, liabilities, net assets, properties, results of operations, value or prospects of Citadel Communications and its Subsidiaries taken as a whole, and neither Citadel Communications nor any of its Subsidiaries has, since September 30, 2000, incurred any material obligation, contingent or otherwise, which has had a material adverse effect on the business, financial condition, assets, liabilities, net assets, properties, results of operations, value or prospects of Citadel Communications and its Subsidiaries taken as a whole, in each case from those reflected in the financial statements referred to in clause (ii) of subsection 9.1(b) at and for the fiscal quarter ended September 30, 2000, except, in each case, to the extent the Merger and the transactions contemplated thereby (including the debt and equity financing thereof) could be deemed to have such an effect. (e) Except as disclosed in or contemplated by the Merger Agreement since September 30, 2000 no dividends or other distributions have been declared, paid or made upon any shares of capital stock of Acquisition Co. (or, to the knowledge of HoldCo, prior to the Closing Date, Citadel Communications) nor have any shares of capital stock of Acquisition Co. (or , to the knowledge of HoldCo, prior to the Closing Date, Citadel Communications) been redeemed, retired, purchased or otherwise acquired by the issuer thereof, except as set forth on Schedule 9.1 hereto or as permitted by subsection 13.9.

Appears in 1 contract

Samples: Credit Agreement (Citadel Broadcasting Co)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at December 31, for each of Fiscal Years 1996, 1997 and 1998 and the related consolidated and consolidating statements of income, stockholders' equity partner's capital, and cash flows of Lessee Company and its Subsidiaries for the fiscal year then ended, each such Fiscal Year and (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June 30for each of the months of April and May 1999 and the Fiscal Quarter ended March 31, 1997 1999 and the related unaudited consolidated and consolidating statements of income, stockholders' equity partner's capital, and cash flows of Lessee Company and its Subsidiaries for the three months then endedeach such period (except for statements of cash flows for each such monthly period). All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustmentsadjustments and the absence of footnotes. Neither Lessee nor any of its Subsidiaries has On the Effective Date, Holdings and Company do not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or in the notes thereto pro forma balance sheet delivered pursuant to subsection 4.2J, or in the financial projections delivered pursuant to subsection 4.2K or reflected on Schedule 5.3 or the most recent financial statements delivered by ------------ Company pursuant to subsection 6.1 of the Existing Credit Agreement, and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or Holdings and any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Anthony Crane Rental Lp)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at December 31, 1996, 1997 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the fiscal year Fiscal Year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June 30, 1997 1998 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the three six-months then ended, (iii) the audited consolidated balance sheets of Anagram and its Subsidiaries as at December 31, 1997 and the consolidated statements of income, stockholders' equity and cash flows of Anagram and its Subsidiaries for its fiscal year then ended and (iv) the unaudited combined and combining balance sheets of Anagram and its Subsidiaries as at June 30, 1998 and the unaudited combined and combining statements of income of Anagram and its Subsidiaries for the six-months then ended. All such statements were prepared in conformity accordance with GAAP applied on a consistent basis throughout the periods covered thereby (except as otherwise indicated therein or in the Anagram Acquisition Agreements) and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the of such respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any Company does not (and did not immediately following the funding of its Subsidiaries has the Existing AXELs) and Anagram does not (and will not immediately following the Initial Borrowing Datefunding of the Additional AXELs) have any Contingent ObligationGuarantee, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Company or any of its SubsidiariesSubsidiaries (after giving effect to the Anagram Acquisition). (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Axel Credit Agreement (Amscan Holdings Inc)

Financial Condition. (A1) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at December 31, 19961997, and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young, copies of Lessee which have been or will be furnished to each Bank, fairly and accurately present the consolidated financial condition of Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, . (ii2) the The unaudited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at June 30March 31, 1997 1998, and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal quarter ended on such date, copies of Lessee which have been or will be furnished to each Bank, fairly and accurately present the consolidated financial condition of Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months fiscal year then ended. . (3) All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at described in clauses (1) and (2) above, including the respective dates thereof related schedules and the results of operations and cash flows (on a consolidated andnotes thereto, where applicable, consolidating basis) of the entities described therein for each of have been prepared in accordance with GAAP applied consistently throughout the periods then endedinvolved (except for such inconsistencies as approved by such accountants or Responsible Officer, subject, in as the case of any such unaudited financial statementsmay be, to changes resulting from audit and normal year-end adjustmentsas disclosed therein). Neither Lessee Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto or otherwise as disclosed in writing to Banks on or before the date hereof. During the period from March 31, 1998, to and including the date hereof there has been no sale, transfer or other disposition or agreement therefor by Company or any of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) which in any such case is material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Company and its consolidated Subsidiaries of any nature whatsoever (whether absoluteat March 31, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1998.

Appears in 1 contract

Samples: Revolving Loan Agreement (Atlantic Gulf Communities Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating Consolidated balance sheets sheet of Lessee and its Subsidiaries Borrower as at December 31, 19961995 and the related audited Consolidated statements of income and retained earnings and changes in financial position for the fiscal year ended on such date, reported on by Xxxxxxxxx, Xxxxxxxx & X'Xxxx Limited copies of which have heretofore been furnished to Bank, are complete and correct and present fairly the Consolidated financial condition of Borrower as at such date, and the related consolidated Consolidated results of Borrower's operations and consolidating statements of income, stockholders' equity and Borrower's Consolidated cash flows of Lessee and its Subsidiaries for the fiscal year then ended, . (iib) the The unaudited consolidated and consolidating Consolidated balance sheets sheet of Lessee and its Subsidiaries Borrower as at June 30December 31, 1997 1996 and the related unaudited consolidated and consolidating Consolidated statements of incomeincome and retained earnings and changes in financial position for the twelve month period ended on such date, stockholders' equity certified by a Responsible Officer, copies of which have heretofore been furnished to Bank, are complete and correct and present fairly the Consolidated financial condition of Borrower as at such date, and the Consolidated results of Borrower's operations and Borrower's Consolidated cash flows of Lessee and its Subsidiaries for the three months twelve month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). (c) All the financial statements described in subsections 3.1(a) and (b), including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee Borrower nor any of its Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or the notes thereto and which described in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to this Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually 3.1 or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholenotes thereto.

Appears in 1 contract

Samples: Revolving Credit Agreement (Friede Goldman International Inc)

Financial Condition. (A) Lessee has The Borrowers have heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee LVSI and its Subsidiaries as at December 31, 1996, 2001 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee the Borrowers and its their Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets of Lessee LVSI and its Subsidiaries as at June 30March 31, 1997 2002 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee LVSI and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any As of its Subsidiaries has the date hereof, except for obligations under the Operative Documents, the Borrowers do not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Borrowers and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its their Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Las Vegas Sands Inc)

Financial Condition. (A) Lessee Borrower has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: at Lenders’ request, (i) the audited consolidated and consolidating balance sheets sheet of Lessee Parent and its Subsidiaries as at December 31, 1996, 2004 and the related consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows of Lessee Parent and its Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets of Lessee Borrower and its Subsidiaries as at June 30March 31, 1997 2005 and the related unaudited consolidated and consolidating statements of income, stockholders' equity operations and cash flows of Lessee Parent and its Subsidiaries for the three months period then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee Parent nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto or that is otherwise contemplated or permitted under this Agreement and, as of any Funding Date subsequent to the Restatement Date, is not reflected in the most recent financial statements delivered to Lenders pursuant to subsection 6.1 or the notes thereto and which that, in any such case case, is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Parent or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Brand Intermediate Holdings Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets sheet of Lessee HoldCo and its Subsidiaries as at December 31, 1996, 2003 and the related consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such date, reported on by Deloitte & Touche LLP and (ii) the unaudited consolidated balance sheet of HoldCo and consolidating balance sheets its Subsidiaries at June 30, 2004 and the related consolidated statements of Lessee operations and cash flows for the fiscal period ended on such date, copies of each of which have heretofore been furnished to each Lender, fairly present in all material respects (except, with respect to interim reports, for normal year-end adjustments) the consolidated financial position of each of HoldCo and its Subsidiaries as at June 30such date, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of their operations and cash flows (on a consolidated and, where applicable, consolidating basis) of for the entities described therein for each of the fiscal periods then ended, subjectended and, in the case of any the statements referred to in the foregoing clause (ii), the portion of the fiscal year through such unaudited financial statementsdate, to changes resulting from audit and normal year-end adjustmentsin each case, in accordance with GAAP consistently applied throughout the periods involved (except as noted therein). Neither Lessee Except as disclosed in the SEC Filings, neither HoldCo nor any of its Subsidiaries has or is subject to any liabilities (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether otherwise), except liabilities or not due) whichobligations which do not, either individually or in the aggregate, could reasonably be expected to be constitute a Material Adverse Effect. (b) Except as disclosed in the SEC Filings, since December 31, 2003 there has been no material to Lessee adverse change in the business, financial condition, assets, liabilities, net assets, properties, results of operations, value or prospects of HoldCo and its Subsidiaries taken as a whole. As , and neither HoldCo nor any of its Subsidiaries has, since December 31, 2003, incurred any material obligation, contingent or otherwise, which has had a material adverse effect on the Initial Borrowing Datebusiness, Lessee does not know financial condition, assets, liabilities, net assets, properties, results of any basis for the assertion against it operations, value or prospects of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee HoldCo and its Subsidiaries taken as a whole, in each case from those reflected in the financial statements referred to in clause (i) of subsection 10.1(a) at and for the fiscal year ended December 31, 2003.

Appears in 1 contract

Samples: Credit Agreement (Citadel Broadcasting Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Borrower and its consolidated Subsidiaries as at December 3129, 19962007 and December 30, 2006, respectively, and the related consolidated and consolidating statements of income, stockholders' equity operations and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by BDO Xxxxxxx, LLP, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Borrower and its consolidated Subsidiaries as at June 30such dates, 1997 and the related unaudited consolidated and consolidating statements results of income, stockholders' equity their operations and of their cash flows of Lessee and its Subsidiaries for the three months fiscal years then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, were, as of the date prepared, prepared in accordance with GAAP applied consistently throughout the periods involved (except as otherwise expressly noted therein, and show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and each of its Subsidiaries as of the dates thereof, including liabilities for taxes, material commitments and Indebtedness. Neither Lessee the Borrower nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheets referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxes, or any material long-term lease or unusual material forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is thereto. (b) As of the date hereof, there are no material in relation to liabilities or obligations of the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. , whether direct or indirect, absolute or contingent, or matured or unmatured, other than (Bi) Except as fully disclosed or provided for in the financial statements delivered pursuant and notes thereto which are referred to Section 5(c)(A)above, there were as or (ii) which are disclosed elsewhere in this Agreement or in the Schedules hereto, or (iii) arising in the ordinary course of business since December 29, 2007 or (iv) created by this Agreement. As of the Initial Borrowing Date no liabilities or obligations date hereof, the written information, exhibits and reports furnished by the Borrower to the Lenders in connection with respect to Lessee and its Subsidiaries the negotiation of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed are complete and correct in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be all material to Lessee and its Subsidiaries taken as a wholerespects.

Appears in 1 contract

Samples: Credit Agreement (Henry Schein Inc)

Financial Condition. (A) Lessee Borrower has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets sheet of Lessee Borrower and its Subsidiaries as at December 31of April 29, 1996, 2001 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Borrower and its Subsidiaries for the fiscal year Fiscal Year then ended, (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee Borrower and its Subsidiaries as at June 30January 27, 1997 2002 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Borrower and its Subsidiaries for the three nine months then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee Borrower nor any of its Restricted Subsidiaries has (and will not following the Initial Borrowing Datefunding of the initial Loans have) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Grand Palais Riverboat Inc)

Financial Condition. (A) Lessee has Borrowers have heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee LVSI and its Subsidiaries as at December 31, 1996, 2000 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Borrowers and its their Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets of Lessee LVSI and its Subsidiaries as at June 30, 1997 2001 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee LVSI and its Subsidiaries for the three six months then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has Except for obligations under the Operative Documents, Borrowers do not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Borrowers and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its their Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Las Vegas Sands Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets sheet of Lessee the Guarantor and its Consolidated Subsidiaries as at of the fiscal year ending December 31, 19962004 provided to the Buyer and the related audited consolidated statements of income and retained earnings and of cash flows for the year then ended, setting forth in each case in comparative form the figures for the previous year, reported on without a "going concern" or like qualification arising out of the scope of the audit conducted by Ernst & Young LLP, copies of which have heretofore been furnished to the Buyer, are complete and correct and present fairly the consolidated financial condition of the Guarantor and its Consolidated Subsidiaries of the foregoing as of such date, and the related consolidated results of their operations and consolidating statements of income, stockholders' equity and their consolidated cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto (if any), have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as disclosed therein). Neither Lessee the Guarantor nor any of its Consolidated Subsidiaries has (and will not following had, as of the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent Obligation, material contingent liability or liability for taxes, long-or any long term lease or unusual forward or long-long term commitment commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction or other financial derivative, that is not reflected in the foregoing financial statements or in the notes thereto thereto. During the period from December 31, 2004 to and which in including the date hereof, there has been no sale, transfer or other disposition by the Seller, the Guarantor or any such case is Consolidated Subsidiaries of the foregoing of any material part of their business or Property and no purchase or other acquisition of any business or Property (including any Capital Stock of any other Person) material in relation to the businessconsolidated financial condition of the Seller, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee the Guarantor or any Consolidated Subsidiaries of its Subsidiariesthe foregoing on the date hereof other than (A) the sale of 000 0xx Xxxxxx and (B) the repayment of approximately $25,000,000 of mortgage debt. (Bii) Except as fully disclosed The operating forecast and cash flow projections of the Seller, the Guarantor and any Consolidated Subsidiaries of the foregoing, copies of which have heretofore been furnished to the Buyer, have been prepared in good faith under the financial statements delivered pursuant direction of a Responsible Officer of the Seller and the Guarantor and in accordance with GAAP. Neither the Seller nor the Guarantor has any reason to Section 5(c)(A), there were believe that as of the Initial Borrowing Date no liabilities date of delivery thereof such operating forecast and cash flow projections are materially incorrect or obligations with misleading in any material respect or omit to Lessee and its Subsidiaries of state any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or material fact which would render them misleading in aggregate, could reasonably be expected to be any material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholerespect.

Appears in 1 contract

Samples: Master Repurchase Agreement (Northstar Realty)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, The consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Borrower and its Consolidated Subsidiaries as at December 31, 1996, 2000 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young, L.L.P., copies of Lessee which have heretofore been furnished to each Lender, present fairly in all material respects the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants and as disclosed therein). Neither Lessee the Borrower nor any of its Consolidated Subsidiaries has (and will not following the Initial Borrowing Date) have had, as of December 31, 2000, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the schedules or notes thereto thereto. Except as set forth on Schedule 5.1, during the period from December 31, 2000 to ------------ and which in including the date hereof there has been no sale, transfer or other disposition by the Borrower or any such case is of its Consolidated Subsidiaries of any material part of its or their business, assets or property and no purchase or other acquisition of any business, assets or property (including any Capital Stock of any other Person) material in relation to the businessconsolidated financial condition of the Borrower and its Consolidated Subsidiaries at December 31, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries2000. (Bb) Except as fully disclosed The financial statements of the Borrower and its Consolidated Subsidiaries and other information most recently delivered under Sections 7.1(a) and (b) were prepared in accordance with GAAP (except in the case of interim statements which shall be without footnotes) and present fairly the consolidated financial condition, results of operations, and cash flows of the Borrower and its Consolidated Subsidiaries as of, and for the portion of the fiscal year ending on the date or dates thereof (subject in the case of interim statements delivered pursuant only to Section 5(c)(Anormal year-end audit adjustments). There were no liabilities, there were direct or indirect, fixed or contingent, of the Borrower or its Consolidated Subsidiaries as of the Initial Borrowing Date no liabilities date or obligations with respect dates of such financial statements which are material to Lessee the Borrower and its Subsidiaries of any nature whatsoever (whether absolutethe Subsidiaries, accruedtaken as a whole, contingent or otherwise and whether or which are not due) whichreflected therein, either individually or in aggregatethe case of the annual statements, in the notes thereto. Except for transactions directly related to, or specifically contemplated by, the Loan Documents, there have been no changes in the consolidated financial condition of the Borrower and/or its Consolidated Subsidiaries from that shown in such financial statements after such date which could reasonably be expected to be material to Lessee and its Subsidiaries taken as have a whole. As of Material Adverse Effect, nor has the Initial Borrowing Date, Lessee does not know of Borrower or any basis for the assertion against it of Consolidated Subsidiary incurred any liability (including, without limitation, any liability under any Environmental Law), direct or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) whichindirect, either individually fixed or in the aggregatecontingent, after such date which could reasonably be expected to be material to Lessee and its Subsidiaries taken as have a wholeMaterial Adverse Effect.

Appears in 1 contract

Samples: Credit Agreement (Media General Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee Holdings and its Subsidiaries as at December 31, 19962003, December 31, 2004, and December 31, 2005, and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the Fiscal Years ended on such dates, reported on by and accompanied by an unqualified report from Kraft, Berger, Grill, Sxxxxxxx, Cxxxx & March LLP, present fairly on a consolidated and consolidating basis the financial condition of Lessee Holdings and its Subsidiaries as at such date, and on a consolidated and consolidating basis the results of their operations and their cash flows for the fiscal year respective Fiscal Years then ended, (ii) the . The unaudited consolidated and consolidating balance sheets of Lessee Holdings and its Subsidiaries as at June 30, 1997 2006, and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows for the three-month period ended on such date, present fairly the consolidated and consolidating financial condition of Lessee Holdings and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof such date, and the results of their operations and their consolidated and consolidating cash flows for the three-month period then ended (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee nor All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). No Group Member has any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial Indebtedness or Guarantee Obligations, contingent liability obligations or liability liabilities of any kind (including any liabilities for taxes, obligations under farm-in agreements or similar arrangements, obligations under long-term lease or leases and unusual forward or long-term commitment commitments (or unrealized or anticipated losses from any unfavorable commitments), and any obligations in respect of Hedge Agreements and Synthetic Debt) that is are not referred to or reflected or provided for in the foregoing most recent financial statements or referred to in this paragraph. During the notes thereto period from December 31, 2005, to and which in including the date hereof there has been no Disposition by any such case is Group Member of any material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any part of its Subsidiariesbusiness or property. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (NGAS Resources Inc)

Financial Condition. (A) Lessee Borrower has heretofore delivered to LessorLenders, Agent and at Lenders’ request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets sheet of Lessee Borrower and its Subsidiaries as at December 31of April 30, 1996, 2006 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Borrower and its Subsidiaries for the fiscal year Fiscal Year then ended, (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee Borrower and its Subsidiaries as at June 30January 28, 1997 2007 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Borrower and its Subsidiaries for the three nine months then endedended and (iii) Borrower’s amended Quarterly Report on Form 10Q/A for the quarter ended January 28, 2007 as filed with the Securities Exchange Commission on July 25, 2007. All such statements (after taking into consideration the Form 10Q/A filing described in clause (iii) above and the restatement described therein) were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee Borrower nor any of its Restricted Subsidiaries has (and will not following the Initial Borrowing Datefunding of the initial Loans have) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto (after taking into consideration the Form 10Q/A filing described in clause (iii) above and the restatement described therein) and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Isle of Capri Casinos Inc)

Financial Condition. (A) Lessee Company has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) at Lenders' request, the audited consolidated balance sheets, statements of income and consolidating balance sheets cash flows of Lessee Company and its Subsidiaries as at December and for the Fiscal Years ended November 2, 2003, October 31, 19962004 and October 30, 2005, and the related unaudited consolidated and consolidating balance sheets, statements of income, stockholders' equity income and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June July 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended2006. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustmentsadjustments and the absence of footnote disclosure. Neither Lessee Company nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment not incurred in the ordinary course of business that (a) as of the Closing Date, is not reflected in the foregoing Company's audited consolidated balance sheets, statements of income and cash flows of Company and its Subsidiaries as at and for the Fiscal Year ended October 30, 2005 or the notes thereto, or the unaudited consolidated balance sheets, statements of income and cash flows of Company and its Subsidiaries as at July 30, 2006 or described in Schedule 7.1 or Schedule 7.4, or (b) as of any Funding Date subsequent to the Closing Date, is not reflected in the most recent audited financial statements delivered to Lenders pursuant to subsection 6.1 or the notes thereto or permitted pursuant to Section 7.1 or 7.4 (or if prior to the delivery of audited financial statements for the 2006 Fiscal Year, is not reflected in any of the Company's audited financial statements described in clause (a) above) and which that, in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregatecase, could reasonably be expected to be material to Lessee and its Subsidiaries taken as have a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeMaterial Adverse Effect.

Appears in 1 contract

Samples: Credit Agreement (Volt Information Sciences, Inc.)

Financial Condition. (Aa) Lessee The Company has heretofore delivered to Lessor, Agent Family Golf correct and Lenders, complete copies of the following financial statements and informationfollowing: (i) an unaudited statement of assets, liabilities, and shareholders equity (deficit) of the audited consolidated Company as of March 31, 1997 (the "Last Balance Sheet"), and consolidating balance sheets the related statements of Lessee revenues and its Subsidiaries expenses, accumulated deficit and retained earnings (deficit) and cash flows for the quarter then ended; (ii) unaudited statements of assets, liabilities, and shareholders' equity (deficit) - income tax basis of the Company as at of December 31, 1996, and the related consolidated and consolidating statements of incomerevenues and expenses, stockholdersaccumulated deficit and retained earnings (deficit) and cash flows for the year then ended; and (iii) audited statements of assets, liabilities, and shareholders' equity (deficit) - income tax basis of the Company as of December 31, 1995, and the related statements of revenues and expenses, accumulated deficit and retained earnings (deficit) and cash flows for each of the years ended December 31, 1995 and 1994 (the financial statements referred to in clauses (i), (ii) and (iii) are referred to collectively herein as the "Company Financial Statements"). The Company Financial Statements were prepared on the income tax basis of accounting applied on a consistent basis throughout the period indicated. The Company Financial Statements fairly present the financial position, results of operations and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements Company as at the respective dates thereof and for the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the respective periods then endedindicated therein, subject, in the case of any such unaudited the interim financial statements, to changes resulting from audit and normal year-end audit adjustments. Neither Lessee nor Since December 31, 1996, there has been no change in any of its Subsidiaries the significant accounting (including tax accounting) policies, practices or procedures of the Company, except that Company has (and will not following determined to change from the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation income tax to the businessGAAP basis of reporting effective with the quarter ended June 30, operations1997. (b) The books of account of the Company are true and complete, have been maintained in accordance with good business practices and accurately and fairly reflect all of the properties, assets, condition (liabilities and transactions of the Company in accordance with generally accepted accounting principles consistently applied. All fees, charges, costs and expenses associated with the ownership, leasing, operation, maintenance and management of the Company's business that are required by generally accepted accounting principles to be charged and reflected in the Company Financial Statements and on the Company's books and records have been properly charged and reflected, and such financial statements and books and records do not, because of the provision of services or otherwise) the bearing of costs and expenses by any other person or prospects entity or for any other reason, materially understate the true costs and expenses of Lessee or any conducting the business of its Subsidiariesthe Company. (Bc) Except The unaudited statement of assets, liabilities and shareholders equity (deficit) of Gen Prop as fully disclosed in of June 30, 1997, fairly presents the financial statements delivered pursuant to Section 5(c)(A), there were position of Gen Prop as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever at that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholedate.

Appears in 1 contract

Samples: Merger Agreement (Family Golf Centers Inc)

Financial Condition. (Aa) Lessee The Borrower has heretofore delivered to Lessorthe Agent, Agent the Board, the Loan Administrator, the Lenders and Lenders, the Supplemental Guarantor the following financial statements and information: : (i) the audited consolidated and consolidating balance sheets sheet of Lessee and its Subsidiaries the Borrower as at December 31, 19962002, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries the Borrower for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee and its Subsidiaries the Borrower as at June September 30, 1997 2003 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries the Borrower for the three months then ended. All such consolidated statements were prepared in conformity with GAAP consistently applied and fairly present the consolidated financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements Borrower as at the respective dates thereof and the consolidated results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein Borrower for each of the periods then ended, ended subject, in the case of any such the unaudited financial consolidated statements, to changes resulting from audit and normal year-end adjustmentsaudit adjustments and the absence of notes thereto. Neither Lessee Except as disclosed in writing to the Agent and the Board prior to the date of this Agreement and set forth on Schedule 4.3, neither the Borrower nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, material contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing consolidated financial statements or in the most recently delivered consolidated financial statements delivered pursuant to Section 5.1(b)(i)(A) or (ii) or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, prospects or condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariesthe Borrower. (Bb) Except as fully disclosed Any projections and pro forma financial information contained in the Application and the projections and pro forma financial statements information delivered to the Lenders and the Board pursuant to Section 3.1(k) are reasonable and based upon assumptions stated therein which were believed by the Borrower to be reasonable at the time made (or as of the Closing Date in the case of the projections and pro forma financial information delivered pursuant to Section 5(c)(A3.1(k)), there were it being recognized by the Board and the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. (c) The Borrower and its Subsidiaries maintain, in accordance with sound business practices and applicable law and rules and regulations issued by any Governmental Authority (i) a system of accounting, which includes maintenance of proper books and records, that permits preparation of financial statements in conformity with GAAP and provides reasonable assurances that (A) transactions are executed in accordance with management's general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management's general or specific authorization; and (D) the Initial Borrowing Date no liabilities or obligations recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to Lessee any differences; and (ii) effective disclosure controls and procedures designed to ensure that material information relating to the Borrower and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected is made known to be material to Lessee and its Subsidiaries taken as a whole. As Responsible Officers of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed Borrower in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholetimely manner.

Appears in 1 contract

Samples: Loan Agreement (World Airways Inc /De/)

Financial Condition. (A) Lessee SPC has heretofore delivered to Lessor, Agent PCI true and Lenders, correct copies of the following financial statements and informationfollowing: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries SPC respectively as at of December 31, 1996, 1998 and 1997 and the related consolidated and consolidating unaudited balance sheet of SPC as of December 31, 1999, the audited statements of income, stockholders' equity statements of retained earnings, and statements of cash flows of Lessee and its Subsidiaries the Company for the fiscal year then endedyears ended December 31, (ii) 1998 and 1997, and the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, statements of retained earnings and statements of cash flow of the Company for the twelve months ended December 31, 1999. SPC represents that such balance sheet presents fairly the financial condition, assets, liabilities, and stockholders' equity of SPC as of its date; each such statement of income and cash flows statement of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and retained earnings presents fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations of SPC for the period indicated and their retained earnings as of the date indicated; and each such statement of cash flows (on a consolidated and, where applicable, consolidating basis) of presents fairly the entities described therein for each of information purported to be shown therein. SPC understands that the financial statements referred to in this Section 3.3 have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods then endedinvolved and are in accordance with the books and records of SPC. Since December 31, subject, 1999: (a) There has at no time been a material adverse change in the case financial condition, results of any such unaudited financial statementsoperations, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial liabilities, or otherwise) or the future prospects of Lessee or any of its SubsidiariesSPC. (Bb) Except as fully disclosed SPC has not authorized, declared, paid, or effected any dividend or liquidating or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of any stock of SPC. (c) The operations and business of SPC has been conducted in all material respects only in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever ordinary course. (whether absolute, accrued, contingent or otherwise and d) SPC has not suffered an extraordinary loss (whether or not duecovered by insurance) whichor waived any right of substantial value. There is no fact known to the Shareholders, either individually or in aggregate, could reasonably be expected to be material to Lessee which materially and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually adversely affects or in the aggregatefuture (as far as the Shareholders can reasonably foresee) may materially and adversely affect the financial condition, could reasonably be expected results of operations, business, properties, assets, liabilities, or future prospects of the Company; provided, however, that the Shareholders express no opinion as to be material to Lessee and its Subsidiaries taken as a wholepolitical or economic matters of general applicability.

Appears in 1 contract

Samples: Acquisition Agreement (Plume Creek Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated balance sheet of the Borrower as at Fiscal Year End 1999, and consolidating the related audited consolidated statements of income and of cash flows for the fiscal year ended on such date, certified by the Accountants, and the unaudited consolidated balance sheets sheet of Lessee the Borrower as at Third Quarter End 2000 and the related unaudited consolidated statements of income and of cash flows for the fiscal quarter ended on such date, copies of which have heretofore been furnished to the Agent, present fairly in all material respects the financial condition of the Borrower as at such respective dates, and the results of its operations and its Subsidiaries cash flows for the fiscal periods then ended. The audited consolidated balance sheet of NNE as at December 31, 19961999, and the related audited consolidated and consolidating statements of income, stockholders' equity income and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedended on such date, (ii) certified by the Accountants, and the unaudited consolidated and consolidating balance sheets sheet of Lessee and its Subsidiaries NNE as at June 30, 1997 2000, and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal quarter ended on such date, copies of Lessee which have heretofore been furnished to the Agent, present fairly, to the best knowledge of the Borrower, in all material respects the financial condition of NNE as at such respective dates, and the results of its operations and its Subsidiaries cash flows for the three months fiscal periods then ended. All such financial statements were (the "Financial Statements"), including the related schedules and notes thereto, have been prepared in conformity accordance with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of applied consistently throughout the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustmentsinvolved. Neither Lessee the Borrower nor NNE has, as of such date, any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which thereto. Since Fiscal Year End 1999 (or, with respect to NNE prior to consummation of the NNE Acquisition, December 31, 1999) there has been no event or condition resulting in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariesa Material Adverse Effect. (Bb) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as The pro forma balance sheet of the Initial Borrowing Date no liabilities or obligations with respect Borrower as at December 31, 2000, a copy of which has heretofore been furnished to Lessee and its Subsidiaries the Agent, presents fairly the pro forma financial condition of any nature whatsoever the Borrower as at such date, assuming (whether absolute, accrued, contingent or otherwise and whether or not duei) which, either individually or in aggregate, could reasonably be expected the Loans to be material made, and Letters of Credit to Lessee be issued, on the Closing Date had been made and its Subsidiaries taken issued, as a whole. As applicable, (ii) the NNE Acquisition had been consummated immediately prior to such date in accordance with the terms of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(AAcquisition Agreement and (iii) which, either individually or in the aggregate, could reasonably be expected all Indebtedness to be material to Lessee and its Subsidiaries taken as a wholerepaid on the Closing Date had been repaid.

Appears in 1 contract

Samples: Credit Agreement (Alpha Technologies Group Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, The consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at December 31, 1996, 2004 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly in all material respects the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries as at June 30March 31, 1997 2005 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the three-month period ended on such date, certified by a Responsible Officer, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly in all material respects the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months three-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end adjustmentsaudit adjustments and the absence of footnotes). (b) All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee any Borrower nor any of its their consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except to the extent permitted under this Agreement or separately disclosed to the Lenders in writing prior to the date hereof, there has been no sale, transfer or other disposition by any Borrower or any of their consolidated Subsidiaries of any material part of its business or property and which in no purchase or other acquisition of any such case is business or property (including any Capital Stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee such Borrower and its consolidated Subsidiaries of any nature whatsoever (whether absoluteat December 31, accrued2004 during the period from December 31, contingent or otherwise 2004 to and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of including the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholedate hereof.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Reebok International LTD)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) The consolidated balance sheet of the audited consolidated Company and consolidating balance sheets of Lessee and its the Subsidiaries as at of December 31, 19962001, and the related together with consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, certified by Xxxxxx Xxxxxxxx & Co., heretofore delivered to the Administrative Agent and the Lenders, fairly present the consolidated financial condition of the Company and the Subsidiaries and the results of their operations as of the dates and for the periods referred to and have been prepared in accordance with GAAP consistently applied throughout the periods involved. As of the Effective Date, there are no material liabilities, direct or indirect, fixed or contingent, of the Company or any of the Subsidiaries as of the dates of such balance sheet which are not reflected therein or in the notes thereto. (ii) the The unaudited consolidated and consolidating balance sheets of Lessee the Company and its the Subsidiaries as at of March 31, 2002 and June 30, 1997 2002, together with unaudited and consolidated statements of income for the three month and six month periods then ended and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months and six months, respectively, then ended. All such statements were prepared in conformity with GAAP , heretofore delivered to the Administrative Agent and the Lenders, fairly present the consolidated financial position (on a consolidated and, where applicable, consolidating basis) condition of the entities described in such financial statements as at Company and the respective dates thereof Subsidiaries and the results of their operations and cash flows (on a consolidated and, where applicable, consolidating basis) as of the entities described therein dates and for each the periods referred to and have been prepared in accordance with GAAP consistently applied throughout the periods involved, subject to the omission or curtailment of footnotes. As of the periods then endedEffective Date, subjectthere are no material liabilities, direct or indirect, fixed or contingent, of the Company and any of the Subsidiaries as of the dates of such balance sheets which are not reflected therein or in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariesthereto. (Biii) Except as fully disclosed Since December 31, 2001, there has been no Material Adverse Change. (iv) Since December 31, 2001, there has not occurred any fact or condition which could have a Material Adverse Effect from that reflected in the financial statements delivered pursuant referred to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever in clause (whether absolute, accrued, contingent or otherwise and whether or not duei) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeabove.

Appears in 1 contract

Samples: Credit Agreement (Health Care Property Investors Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, Each of the following financial statements described below (copies of which have heretofore been provided to the Agent for distribution to the Banks) have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby, are complete and information: correct in all material respects and present fairly the financial condition (including disclosure of all material liabilities, contingent or otherwise) and results from operations of the entities as of the dates specified and for the periods specified, subject in the case of interim company-prepared statements to normal year-end adjustments and the absence of footnotes: (i) the audited consolidated and consolidating balance sheets of Lessee the Consolidated Group dated as of June 30, 1999, June 30, 2000 and its Subsidiaries as at December 31June 30, 19962001, and together with the related consolidated and consolidating audited statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year years then ended, certified by PriceWaterhouseCoopers, certified public accountants; (ii) the unaudited consolidated and consolidating unaudited, company-prepared balance sheets of Lessee and its Subsidiaries the Consolidated Group dated as at June of March 30, 1997 and 2002, together with the related unaudited consolidated and consolidating unaudited, company-prepared statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months fiscal quarter then ended. All such ; and (iii) after the Closing Date, the annual and quarterly financial statements were prepared provided in conformity accordance with GAAP Sections 6.3(a) and fairly present (b). (b) For the financial position period from June 30, 2001 to the Closing Date, except as previously disclosed in writing to the Agent and the Banks, (on a consolidated andi) there have been no material sales, where applicable, consolidating basis) transfers or other dispositions of any material part of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) business or Property of the entities described therein for each members of the periods then endedConsolidated Group, subject, in the case nor have there been any material purchases or other acquisitions of any such unaudited financial statementsbusiness or Property (including the Capital Stock of any other person) by the members of the Consolidated Group, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is are not reflected in the foregoing annual audited or company-prepared quarterly financial statements referenced in Section 4.6(a)(i) and (ii), and (ii) no material Restricted Payments have been declared or paid by members of the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its SubsidiariesConsolidated Group. (Bc) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A)Since June 30, 2001, there were as has been no circumstance, development or event relating to or affecting the members of the Initial Borrowing Date no liabilities Consolidated Group that has had or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as have a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeMaterial Adverse Effect.

Appears in 1 contract

Samples: Credit Agreement (Watson Wyatt & Co Holdings)

Financial Condition. (A) Lessee has The Borrowers have heretofore delivered to LessorLenders, Agent and at Lenders’ request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee LVSI and its Subsidiaries as at each of December 31, 19962004, and December 31, 2005, and the related consolidated and consolidating statements of income, stockholders' ’ or members’ equity and cash flows of Lessee LVSI and its Subsidiaries for the fiscal year Fiscal Years then ended, ; and (ii) the unaudited consolidated and consolidating balance sheets of Lessee LVSI and its Subsidiaries as at March 31, 2006, June 30, 1997 2006 and September 30, 2006 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee LVSI and its Subsidiaries for the three months each such three-month period then ended. The Borrowers have heretofore delivered the quarterly report on Form 10-Q for the quarter ending September 30, 2006, of LVSC filed with the Securities and Exchange Commission which includes a condensed consolidating financial information note that contains a column covering the Borrowers and the Subsidiary Guarantors under the title “Guarantor Subsidiaries” set forth in the notes to the Financial Statements contained in LVSC’s quarterly report on Form 10-Q). All such statements and schedules were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicableto the extent expressly provided hereinabove, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicableto the extent expressly provided hereinabove, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any As of its Subsidiaries has the date hereof, except for obligations under the Operative Documents, and guarantees of the LVSC Notes, the Borrowers do not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Borrowers and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its their Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Ff&e Facility Credit Agreement (Las Vegas Sands Corp)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at December 31for each of Fiscal Years 1995, 1996, 1996 and 1997 and the related consolidated and consolidating statements of income, stockholders' equity partner's capital, and cash flows of Lessee Company and its Subsidiaries for the fiscal year then ended, each such Fiscal Year and (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June 30, 1997 for each fiscal month and Fiscal Quarter ended subsequent to the date of the most recent financial statements referred to in clause (i) and the related unaudited consolidated and consolidating statements of income, stockholders' equity partner's capital, and cash flows of Lessee Company and its Subsidiaries for the three months then endedeach such period (except for statements of cash flows for each such monthly period). All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustmentsadjustments and the absence of footnotes. Neither Lessee nor any of its Subsidiaries has On the Closing Date, Holdings and Company do not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements statements, in the pro forma balance sheet delivered pursuant to subsection 4.1L, or in the notes thereto financial projections delivered pursuant to subsection 4.1M or reflected on Schedule 5.3, ------------ and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or Holdings and any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Revolving Credit Agreement (Anthony Crane Holdings Capital Corp)

Financial Condition. (A) Lessee Company has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: at Lenders' request, (i) the audited consolidated and consolidating balance sheets financial statements of Lessee Company and its Subsidiaries as at December 31for Fiscal Years ending February 29, 19961996 and February 28, 1997, in each case consisting of balance sheets and the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such Fiscal Year, (ii) unaudited condensed combined consolidated financial statements of Lessee Company and its Subsidiaries for the fiscal year then endednine months ended November 30, 1996 and November 30, 1997, in each case consisting of balance sheets and related statements of operations and statements of cash flow, (iiiii) the unaudited consolidated and consolidating balance sheets audited financial statements of Lessee Cineplex Odeon and its Subsidiaries as at June 30for Fiscal Years ending December 31, 1997 1996 and December 31, 1997, in each case consisting of balance sheets and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows for such Fiscal Year, and (iv) unaudited consolidated financial statements of Lessee Cineplex Odeon and its Subsidiaries for the three nine months then endedended September 30, 1996 and September 30, 1997, in each case consisting of balance sheets, income statements and statements of changes in cash resources. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to the changes resulting from audit and normal year-end adjustmentsadjustments and absence of footnotes. Neither Lessee nor any None of its Subsidiaries the Loan Parties has (and none of the Loan Parties will not have following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is required by GAAP to be, but is not, or to the extent not required by GAAP which is known to or reasonably should be known to Company, but is not, reflected in the foregoing financial statements or the most recent financial statements delivered pursuant to subsection 6.1 or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of Company and its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (LTM Holdings Inc)

Financial Condition. (A) Lessee Vendor has heretofore delivered to Lessorthe Purchaser true and correct copies of the following, Agent and Lenders, the following financial statements and informationinitialled by an authorized executive officer of Vendor: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries Subsidiary as at December 31, 1996, and of August302002; the related unaudited consolidated and consolidating balance sheet of Subsidiary as of September 30 2002; audited consolidated statements of income, stockholders' equity consolidated statements of retained earnings, and consolidated statements of cash flows of Lessee and its Subsidiaries Subsidiary for the fiscal year then ended, (ii) years ended September 30 2002; and the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements consolidation statement of income, stockholders' equity consolidated statement of retained earnings, and consolidated statement of cash flows of Lessee and its Subsidiaries Subsidiary for the three months then endedended September 30. All Each such statements were prepared in conformity with GAAP and consolidated balance sheet presents fairly present the financial position (on a condition, assets, liabilities. and stockholders equity of Subsidiary as of its date; each suck consolidated and, where applicable, consolidating basis) statement of the entities described in such financial statements as at the respective dates thereof income and consolidated statement of retained earnings presents fairly the results of operations of Subsidiary for the period indicated and their retained earnings as of the data indicated; and each such consolidated statement of cash flows (on a consolidated and, where applicable, consolidating basis) presents fairly the information purported to be shown therein. The financial statements referred to in this Section 1.03 have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved and are in accordance with the books and records of Subsidiary. Since the incorporation of the entities described therein company: (a) There has at no time been a material adverse change in the financial condition, results of operations, business properties, assets, liabilities, or future prospects of Subsidiary. (b) Subsidiary has not authorized, declared, paid or effected any dividend or liquidation or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of my stock of Subsidiary. (c) The operations and business of Subsidiary have been conducted in all respects only in the ordinary course. (d) There has been no accepted purchase order or quotation, arrangement, or understanding for each future sale of the periods then endedproducts or services of Subsidiary which Subsidiary expects will not be profitable. (e) Subsidiary has not suffered an extraordinary loss (whether or not covered by insurance) or waived my right of substantial value. (f) Subsidiary has not paid or incurred any tax, subjectother liability, or expense resulting from the preparation of, or the transactions contemplated by, this Agreement, it being understood Vendor shall have paid or will pay all such taxes (including stock transfer taxes resulting from this Agreement or the transactions contemplated hereby), liabilities, and expenses. There is no fact known to Subsidiary or Vendor which materially adversely affects or in the case future may materially adversely affect the financial condition, results of any such unaudited financial statementsoperations, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial liabilities, or otherwise) or future prospects of Lessee Subsidiary, provided, however, that Subsidiary and Vendor express no opinion as to political or any economic matters of its Subsidiariesgeneral applicability. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Share Exchange Agreement (L Air Holding Inc)

Financial Condition. (A) Lessee Borrower has heretofore delivered to Lessor, Agent the Lender the consolidated balance sheet of Borrower and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at of December 31, 19962000, and the related consolidated and consolidating statements statement of income, stockholders' equity and statement of cash flows of Lessee and its Subsidiaries flow for the fiscal year then ended, (ii) audited by its independent certified public accountants. Borrower has also delivered to the Lender the unaudited consolidated balance sheet of Borrower and consolidating balance sheets of Lessee and its the Subsidiaries as at June 30of March 31, 1997 2001 and the related unaudited consolidated and consolidating statements statement of income, stockholders' equity and statement of cash flows of Lessee and its Subsidiaries flow for the three (3) months then ended. All such Such Agreement (Continued) -------------------------------------------------------------------------------- financial statements were prepared in conformity with GAAP and fairly present the consolidated financial position condition of Borrower as of such dates and have been prepared in accordance with GAAP (on a consolidated andexcept that unaudited financial statements omit certain footnotes); and as of the date hereof, where applicablethere are no obligations, consolidating basisliabilities or Indebtedness (including contingent and indirect liabilities and obligations) of Borrower which are (separately or in the entities described aggregate) material and are required under GAAP to be reflected in such financial statements as at or otherwise disclosed herein or in the respective dates thereof and Schedules. Since the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) date of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited above-referenced year end financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor there have not been, except as disclosed in Schedule 4.06: (i) any Material Adverse Change; (ii) any Dividend declared or paid or distribution made on the capital stock of its Subsidiaries has Borrower or any capital stock thereof redeemed or repurchased; (and will not following the Initial Borrowing Dateiii) have any Contingent Obligation, contingent liability or liability for taxes, incurrence of long-term lease debt by Borrower; (iv) any salary, bonus or unusual forward compensation increases to any officers, key employees or long-term commitment that is not reflected agents of Borrower, other than in the foregoing financial statements ordinary course of business and consistent with past practice; or the notes thereto and which in (v) any such case is other material in relation to the businesstransaction entered into by Borrower, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed except in the financial statements delivered pursuant to Section 5(c)(A), there were as ordinary course of the Initial Borrowing Date no liabilities or obligations business and consistent with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholepast practice.

Appears in 1 contract

Samples: Convertible Loan Agreement (Cover All Technologies Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Company and its Consolidated Subsidiaries as at December 31February 3, 1996, 1996 and the related consolidated and consolidating statements of income, stockholders' equity retained earnings and changes in financial position (or of cash flows flow, as the case may be) of Lessee the Company and its Consolidated Subsidiaries for the fiscal year then endedended on said date, with the opinion thereon (iiin the case of said consolidated balance sheet and statements) of Ernst & Young LLP, and the unaudited consolidated and consolidating balance sheets of Lessee the Company and its Consolidated Subsidiaries as at June 30August 3, 1997 1996 and the related unaudited consolidated and consolidating statements of income, stockholders' equity retained earnings and changes in financial position (or of cash flows flow, as the case may be) of Lessee the Company and its Consolidated Subsidiaries for the three months then ended. All six-month period ended on such statements were prepared in conformity with GAAP date, heretofore furnished to the Bank, are complete and correct and fairly present the consolidated and consolidating financial position (on a consolidated andcondition, where applicableas the case may be, consolidating basis) of the entities described in such financial statements Company and its Consolidated Subsidiaries as at the respective said dates thereof and the results consolidated and consolidating results, as the case may be, of their operations for the fiscal year and cash flows six-month period ended on said dates (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statementsstatements as at August 3, 1996, to changes resulting from audit and normal year-end audit adjustments), all in accordance with generally accepted accounting principles and practices applied on a consistent basis. Neither Lessee the Company nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have had on said dates any Contingent Obligationmaterial contingent liabilities, contingent liability or liability liabilities for taxes, long-term lease or unusual forward or long-term commitment that is not commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said balance sheets as at said dates. Since August 3, 1996, other than with respect to the CAT Transaction, there has been no material adverse change in the foregoing consolidated financial statements or the notes thereto and which in any such case is material in relation to the businesscondition, operations, properties, assets, condition (financial or otherwise) business or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As whole of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever Company and its Consolidated Subsidiaries from that is not fully disclosed set forth in the said financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.at said date. CREDIT AGREEMENT

Appears in 1 contract

Samples: Credit Agreement (Cygne Designs Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following The audited consolidated financial statements of Borrower as of the Fiscal Year ended March 31, 2020, as included in the Borrower’s Annual Report on Form 10-K filed with the SEC, and information: (i) the audited Borrower’s consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at quarterly financial statements for the Fiscal Quarter ending on or about December 31, 19962020, and as included in the related consolidated and consolidating statements of incomeBorrower’s Quarterly Report on Form 10-Q filed with the SEC (collectively, stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended“Financial Statements”), (ii) all heretofore furnished to the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30Lender, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were have been prepared in conformity accordance with GAAP (except in the case of quarterly statements, absent customary year-end adjustments) consistently applied throughout the periods indicated are all true and correct in all material respects and present fairly present the financial position (on a consolidated and, where applicable, consolidating basis) condition at the date of the entities described in such said financial statements as at the respective dates thereof and the results of operations and cash flows (for the fiscal period then ending. The Borrower as of December 31, 2020, on a consolidated andbasis, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will did not following the Initial Borrowing Date) have any Contingent Obligationsignificant liabilities, contingent liability or liability otherwise, including liabilities for taxes, long-term lease Taxes or any unusual forward or long-term commitment that is commitments which were not reflected disclosed by or reserved against in the foregoing financial statements Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Loan Parties. Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A)on Schedule 4.6, there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries date of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does Loan Parties do not know of any basis for the assertion against it any of the Loan Parties of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to this Section 5(c)(A) which4.6 that, either individually or in the aggregate, could reasonably be expected to be material have a Material Adverse Effect. (b) On and as of the date of this Agreement, and after giving effect to Lessee all Indebtedness (including the Loans) and its Subsidiaries Liens created by the Loan Parties in connection herewith, (i) the sum of the assets, at a fair valuation, of the Borrower (standing alone) and the Loan Parties (taken as a whole) will exceed its debts, (ii) the Borrower (standing alone) and the Loan Parties (taken as a whole) has and have not incurred and does or do not intend to incur, and does or do not believe that it or they will incur, debts beyond its or their ability to pay such debts as such debts mature, and (iii) the Borrower (standing alone) and the Loan Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 4.6(b), “debt” means any liability on a claim, and “claim” means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 1 contract

Samples: Credit Facility Agreement (Transcat Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 1995 and the related consolidated statements of income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young, a copy of which has been furnished to the Lender, fairly and accurately present the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended. (b) The unaudited consolidated balance sheets of the Company and its consolidated Subsidiaries as at September 30, 1996, and the related consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee and its Subsidiaries for the three months and fiscal year then ended, (ii) a copy of which has been delivered to the unaudited Lender, fairly and accurately presents the consolidated and consolidating balance sheets financial condition of Lessee the Company and its consolidated Subsidiaries as at June 30such date, 1997 and the related unaudited consolidated results of their operations and consolidating statements of income, stockholders' equity and their consolidated cash flows of Lessee and its Subsidiaries for the three months months, and fiscal year, then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end adjustments) and a Responsible Officer has so certified to the Lender. (c) All such financial statements described in clauses (a) and (b) above, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except for such inconsistencies as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto or in Schedule 4.1. Since September 30, 1996 there has been no sale, transfer or other disposition or agreement therefor by the Company or any of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) which in any such case is material in relation to the businessconsolidated financial condition of the Company and its consolidated Subsidiaries at September 30, operations1996, properties, assets, condition (financial except as described in Schedule 4.1 or otherwise) or prospects of Lessee or any of consented to in writing by the Lender in its Subsidiariessole discretion. (Bd) Except The three-year Management Business Plan update for the period 1996-1998 delivered to the Lender prior to the date hereof (i) was prepared in good faith upon assumptions believed by the Company to be reasonable, it being understood that the projections therein contained as fully disclosed in to future events are subject to certain uncertainties and contingencies which are beyond the financial statements delivered pursuant to Section 5(c)(A), there were as control of the Initial Borrowing Date Company and may be significant, and thus no liabilities or obligations with respect to Lessee assurance can be given that such projections will be realized, and its Subsidiaries (ii) presents fairly, in all material respects, the actual results of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As operations of the Initial Borrowing Date, Lessee does not know of any basis Company and Subsidiaries for the assertion against it period from January 1, 1996 through the date thereof, in accordance with GAAP, subject to recurring year-end audit adjustments and the absence of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholefootnotes.

Appears in 1 contract

Samples: Secured Note Agreement (Atlantic Gulf Communities Corp)

Financial Condition. (Aa) Lessee Borrower has heretofore delivered to Lessor, Agent and Lenders, Lender copies of the following most recent audited financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31, 1996Borrower, and the related consolidated and consolidating statements of income, stockholders' equity and statement of cash flows of Lessee and its Subsidiaries flow for the fiscal year then endedended December 31, (ii) 1994, by its independent Certified Public Accountant. Borrower has also delivered to Lender copies of the unaudited consolidated and consolidating balance sheets sheet of Lessee and its Subsidiaries Borrower as at June of September 30, 1997 1995, and the related unaudited consolidated and consolidating statements of income, stockholders' equity and statement of cash flows of Lessee and its Subsidiaries flow for the three months then endedperiod ended such date, which financial statements have not been certified by its independent Certified Public Accountant. All Such financial statements are true and correct in all material respects, fairly represent the financial condition of Borrower as of such statements were dates and have been prepared in conformity accordance with GAAP and fairly present the (except unaudited financial position (statements omit certain footnotes) applied on a consolidated andbasis consistent with that of prior periods; and as of the date hereof, where applicablethere are no obligations, consolidating basisliabilities or Indebtedness (including contingent and indirect liabilities and obligations) of Borrower which are (separately or in the entities described aggregate) material and are not reflected in such financial statements as at or otherwise disclosed herein. Since the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) date of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited above referenced year end financial statements and quarterly financial statements, there has not been: (i) any Material Adverse Change in the financial condition, results of operations, business, prospects, assets or liabilities (contingent or otherwise, whether due or to changes resulting from audit and normal year-end adjustments. Neither Lessee nor become due, known or unknown), of the Borrower; (ii) any dividend declared or paid or distribution made on the capital stock of its Subsidiaries has the Borrower or any capital stock thereof redeemed or repurchased; (and will not following the Initial Borrowing Dateiii) have any Contingent Obligation, contingent liability or liability for taxes, incurrence of long-term lease debt by the Borrower; (iv) any salary, bonus or unusual forward compensation increases to any officers, key employees or long-term commitment that is not reflected agents of the Borrower or (v) any other transaction entered into by the Borrower except in the foregoing financial statements or ordinary course of business and consistent with past practice. Borrower hereby acknowledges that Mama Xxxxx'x lost money during the notes thereto Month of October, 1995 and which in any such case the Borrower is material in relation aware of a compensation increases granted to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its SubsidiariesXx. Xxxxxxxxxx and Xx. Xxxxxx. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Convertible Debenture Loan Agreement (Packaging Research Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating ------------------- balance sheets of Lessee the Company and its Consolidated Subsidiaries as at December 31February 28, 19961997, and the related audited consolidated and consolidating statements of income, stockholders' shareholder's equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) copies of which have heretofore been furnished to each Lender, are complete and correct and present fairly the unaudited consolidated financial condition of each such Person as at such date and consolidating balance sheets the consolidated results of Lessee its operations and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months fiscal period then ended. All such financial statements were have been prepared in conformity accordance with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of applied consistently throughout the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit involved. The Company and normal year-end adjustments. Neither Lessee nor any of its Consolidated Subsidiaries has (and will do not following the Initial Borrowing Date) have any material Contingent Obligation, contingent liability or liability for taxes, taxes or long-term lease or unusual forward or long-term commitment likely (individually or in the aggregate) to result in a Material Adverse Effect that is not reflected in the foregoing said financial statements or in the notes thereto thereto. During the period from February 28, 1997 to and which in including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its Consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the consolidated financial condition of the Company and its Consolidated Subsidiaries at February 28, 1997, except as disclosed in the Syndication Memorandum (b) Except as disclosed in the Syndication Memorandum, there has been no material adverse change in the business, operations, properties, assets, property or condition (financial or otherwise) of the Company and its Consolidated Subsidiaries taken as a whole since February 28, 1997. (c) Except as disclosed in the registration statement (file number 333-24043) of the Company on Form S-1, as amended as of the date hereof, no dividends or prospects other distributions have been declared, paid or made upon any shares of Lessee capital stock of the Company or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as nor have any shares of capital stock of the Initial Borrowing Date no liabilities Company or obligations with respect to Lessee and any of its Subsidiaries of any nature whatsoever (whether absolutebeen redeemed, accruedretired, contingent purchased or otherwise and whether acquired for value by the Company or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and any of its Subsidiaries taken as a whole. As of the Initial Borrowing Datesince February 28, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1997.

Appears in 1 contract

Samples: Credit Agreement (Pameco Corp)

Financial Condition. (A) Lessee The Company heretofore has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the Purchasers an audited consolidated and consolidating balance sheets sheet of Lessee the Company and its Subsidiaries as at December 31September 30 in each of the years 1992 to 1994, 1996inclusive, and the related audited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee the Company and its Subsidiaries for each such year, including the notes thereto (collectively, the "Financial Statements"). The Financial Statements have been prepared in accordance with GAAP applied consistently, and present fairly the consolidated financial condition of the Company and its Subsidiaries as of the dates thereof, and the consolidated results of operations and cash flows of the Company and its Subsidiaries for the fiscal year period then ended, (ii) . The Company heretofore has also delivered to the Purchasers an unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its Subsidiaries as at June 30, 1997 30 each of the years 1994 and the related 1995 and unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee the Company and its Subsidiaries for the three months then endednine-month period ended on each such date, prepared by the Company. All such Such financial statements were prepared in conformity accordance with GAAP and fairly present the financial position (on a basis consistent with the Financial Statements and present fairly the consolidated and, where applicable, consolidating basis) financial condition of the entities described in such financial statements Company and its Subsidiaries as at of the respective dates thereof thereof, and the consolidated results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein Company and its Subsidiaries for each of the periods period then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee the Company nor any of its Subsidiaries has any material debt, liability (and will not following the Initial Borrowing Dateincluding without limitation any tax liability) have or other obligation of any Contingent Obligationnature (whether accrued, absolute, contingent liability or liability for taxesotherwise, long-term lease known or unusual forward unknown, due or long-term commitment to become due) that is not (i) reflected on the balance sheet (or in the foregoing financial statements notes thereto) included in the Financial Statements or (ii) of a type reflected on such balance sheet and incurred subsequent to the notes thereto and which date of such balance sheet in the ordinary course of business. Since September 30, 1994, there has not been any material adverse change, nor has any event occurred that could result in any such case is material in relation change, nor to the businessbest of the Company's knowledge is any such change threatened, operations, properties, assets, in the condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as properties, prospects, assets, business or operations of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolutePolyphase Entities, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Securities Purchase Agreement (Polyphase Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, The consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its consolidated Subsidiaries as at December 31, 1996, 1995 and the related consolidated statement of operations for the fiscal year ended on such date, audited by Coopers & Xxxxxxx LLP, a copy of which has heretofore been furnished to each Lender, present fairly in accordance with GAAP the consolidated financial condition of the Company and consolidating statements its consolidated Subsidiaries as at such date, and the consolidated results of income, stockholders' equity their operations and their consolidated cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such financial statements were have been prepared in conformity accordance with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of applied consistently throughout the periods then ended, subject, in the case of any involved (except as approved by such unaudited financial statements, to changes resulting from audit accountants and normal year-end adjustmentsas disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any material Contingent Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any material interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto or expressly permitted to be incurred hereunder. (b) The unaudited consolidated balance sheets of the Company as at June 30, 1996, certified by a Responsible Officer of the Company, copies of which have heretofore been furnished to each Lender, present fairly in accordance with GAAP the financial position of the Company and its consolidated Subsidiaries as at such dates. Such balance sheets, including the related schedules and notes thereto, have been prepared in accordance with GAAP (except as approved by such Responsible Officer and disclosed therein). The Company and its consolidated Subsidiaries did not have at the date of such balance sheets, any material Contingent Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, including, without limitation, any interest rate or foreign currency exchange transaction, which is not reflected in any such case is material balance sheets or in relation the notes thereto. During the period from December 31, 1995 to the businessEffective Date, operationsno dividends or other distributions have been declared, properties, assets, condition (financial paid or otherwise) or prospects made upon the Capital Stock of Lessee the Company or any of its consolidated Subsidiaries except as permitted under the Existing Credit Agreement, nor has any of the Capital Stock of the Company or any of its consolidated Subsidiaries been redeemed, retired, purchased or otherwise acquired for value by the Company or any of its consolidated Subsidiaries, respectively. (Bc) Except The unaudited consolidated PRO FORMA balance sheet of the Company and its consolidated Subsidiaries as fully disclosed at June 30, 1996, certified by a Responsible Officer of the Company (the "PRO FORMA BALANCE SHEET"), a copy of which has heretofore been furnished to each Lender, is the unaudited balance sheet of the Company and its consolidated Subsidiaries, adjusted to give effect (as if such events had occurred on such date) to (i) the IPO, (ii) the extension of the Loans and the issuance of the Letters of Credit to be incurred or issued, as the case may be, on the Effective Date, (iii) the prepayment by Holdings of indebtedness in the financial statements delivered pursuant to Section 5(c)(Aprincipal amount of $10,000,000 (plus a $350,000 redemption premium), there were (iv) the contribution by Holdings to the Company of preferred stock, (v) the sale by the Company of one or more shares of the Company's Capital Stock to Holdings, (vi) the redemption by the Company, from the proceeds of the sale of its Capital Stock to Holdings, of approximately $33,300,000 of the Company's outstanding 12.75% Subordinated Notes, due March 1, 2005, for $37,500,000 (including the redemption premium), and (vii) the prepayment by the Company of a portion of the Revolving Credit Loans without reducing the Commitments. The Pro Forma Balance Sheet, together with the notes thereto, was prepared based on good faith assumptions in accordance with GAAP and is based on the best information available to the Company and its consolidated Subsidiaries as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee date of delivery thereof, and reflects on a PRO FORMA basis the financial position of the Company and its consolidated Subsidiaries as of any nature whatsoever (whether absoluteSeptember 30, accrued1996, contingent or otherwise and whether or not due) whichas adjusted, either individually or in aggregateas described above, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of assuming that the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed events specified in the financial statements delivered pursuant to Section 5(c)(A) whichpreceding sentence had actually occurred at September 30, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1996.

Appears in 1 contract

Samples: Credit Agreement (Prime Service Inc)

Financial Condition. (A) Lessee Borrower has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets sheet of Lessee Parent and its Subsidiaries as at December 31, 1996, 2005 and the related consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows of Lessee Parent and its Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets of Lessee Borrower and its Subsidiaries as at June 30March 31, 1997 2006 and the related unaudited consolidated and consolidating statements of income, stockholders' equity operations and cash flows of Lessee Parent and its Subsidiaries for the three months period then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee Parent nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto or that is otherwise contemplated or permitted under this Agreement and, as of any Funding Date subsequent to the Restatement Date, is not reflected in the most recent financial statements delivered to Lenders pursuant to subsection 6.1 or the notes thereto and which that, in any such case case, is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Parent or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Amendment Agreement (Brand Energy & Infrastructure Services, Inc)

Financial Condition. Xxxxxx Xxxxx & Company (A) Lessee "ME"), which has heretofore delivered to Lessorexamined the financial statements of the Company, Agent together with the related schedules and Lendersnotes, for the period from September 1, 2003 through August 31, 2005, are independent accountants within the meaning of the Securities Act, the following financial statements Exchange Act, and informationthe rules and regulations promulgated thereunder. SheerVision has provided to CWTI true and correct copies of the following: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries SheerVision as at December of August 31, 19962004, and the related consolidated 2005; unaudited balance sheets of SheerVision as of December 30, 2004 and consolidating 2005; audited statements of income, statements of stockholders' equity equity, and statements of cash flows of Lessee and its Subsidiaries SheerVision for the fiscal year then endedyears ended August 31, (ii) 2004, and 2005; and the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, statements of stockholders' equity, and statements of cash flows of SheerVision for the four months ended December 31, 2004 and 2005. Each such balance sheet presents fairly the financial condition, assets, liabilities, and stockholders' equity of SheerVision as of its respective date; each such statement of income and cash flows statement of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and stockholders' equity presents fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations of SheerVision for the period indicated; and each such statement of cash flows (on a consolidated and, where applicable, consolidating basispresents fairly the information purported to be shown therein. The financial statements referred to in this Section 2.01(c) of will have been prepared in accordance with generally accepted accounting principles in the entities described therein for each of United States consistently applied throughout the periods then endedinvolved, subjectare in accordance with the books and records of SheerVision, and complied and will comply in all material respects with all applicable accounting requirements. Since December 31, 2005: (i) There has at no time been a material adverse change in the case financial condition, results of any such unaudited financial statementsoperations, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operationsbusinesses, properties, assets, condition (financial liabilities, or otherwise) or future prospects of Lessee or any of its SubsidiariesSheerVision. (Bii) Except as fully disclosed SheerVision has not authorized, declared, paid, or effected any dividend or liquidating or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of any stock of SheerVision. (iii) The operations and businesses of SheerVision have been conducted in all respects only in the financial statements delivered pursuant to Section 5(c)(A)ordinary course, there were except as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed described in the financial statements delivered pursuant SheerVision Disclosure Letter. There is no fact known to Section 5(c)(A) which, either individually SheerVision which materially adversely affects or in the aggregatefuture (as far as SheerVision can reasonably foresee) may materially adversely affect the financial condition, could reasonably be expected results of operations, businesses, properties, assets, liabilities, or future prospects of SheerVision; provided, however, that SheerVision expresses no opinion as to political or economic matters of general applicability. SheerVision has made known, or caused to be made known, to the accountants or auditors who have prepared, reviewed, or audited the aforementioned consolidated financial statements all material to Lessee facts and its Subsidiaries taken as a wholecircumstances which could affect the preparation, presentation, accuracy, or completeness thereof.

Appears in 1 contract

Samples: Share Exchange and Reorganization Agreement (Clean Water Technologies Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets sheet of Lessee the Company and its Subsidiaries as at December 31, 1996, 1996 and the related audited consolidated and consolidating statements of income, operations and stockholders' equity and cash flows for the fiscal year ended on such date present fairly the consolidated financial condition of Lessee the Company and its Subsidiaries as of such date, and the consolidated results of their operations and cash flows for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating condensed balance sheets sheet of Lessee the Company and its Subsidiaries as at June 30March 31, 1997 and the related unaudited consolidated and consolidating condensed statements of income, operations and stockholders' equity and cash flows for the three-month period ended on such date present fairly the consolidated financial condition of Lessee the Company and its Subsidiaries for the three months then ended. All as of such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated anddate, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the consolidated results of their operations and cash flows for the three-month period then ended (on a consolidated andsubject to normal year-end audit adjustments and the absence of footnotes). All such financial statements, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, have been prepared in accordance with GAAP (subject, in the case of any such unaudited the financial statementsstatements for the fiscal period ended March 31, 1997, to changes resulting from audit and normal year-end adjustmentsaudit adjustments and the absence of footnotes) applied consistently throughout the periods presented except as disclosed in such financial statements or in writing to the Lenders prior to the date of this Agreement. Neither Lessee the Company nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any material Contingent ObligationObligation or any material obligation, contingent liability or commitment, direct or contingent (including, without limitation, any liability for taxes, long-term lease taxes or unusual any material forward or long-term commitment that commitment), which is not (A) reflected in the foregoing financial statements or the notes thereto and which otherwise disclosed in any such case is material in relation writing to the business, operations, properties, assets, condition (financial Lenders prior to the date hereof or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected permitted to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeincurred under this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Revlon Worldwide Parent Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Borrower and its consolidated Subsidiaries as at December 3129, 19962007 and December 30, 2006, respectively, and the related consolidated and consolidating statements of income, stockholders' equity operations and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by BDO Sxxxxxx, LLP, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects,the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Borrower and its consolidated Subsidiaries as at June 30such dates, 1997 and the related unaudited consolidated and consolidating statements results of income, stockholders' equity their operations and of their cash flows of Lessee and its Subsidiaries for the three months fiscal years then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, were, as of the date prepared, prepared in accordance with GAAP applied consistently throughout the periods involved (except as otherwise expressly noted therein, and show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and each of its Subsidiaries as of the dates thereof, including liabilities for taxes, material commitments and Indebtedness. Neither Lessee the Borrower nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheets referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxes, or any material long-term lease or unusual material forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is thereto. (b) As of the date hereof, there are no material in relation to liabilities or obligations of the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. , whether direct or indirect, absolute or contingent, or matured or unmatured, other than (Bi) Except as fully disclosed or provided for in the financial statements delivered pursuant and notes thereto which are referred to Section 5(c)(A)above, there were as or (ii) which are disclosed elsewhere in this Agreement or in the Schedules hereto, or (iii) arising in the ordinary course of business since December 29, 2007 or (iv) created by this Agreement. As of the Initial Borrowing Date no liabilities or obligations date hereof, the written information, exhibits and reports furnished by the Borrower to the Lenders in connection with respect to Lessee and its Subsidiaries the negotiation of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed are complete and correct in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be all material to Lessee and its Subsidiaries taken as a wholerespects.

Appears in 1 contract

Samples: Credit Agreement (Henry Schein Inc)

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Financial Condition. (Aa) Lessee The Borrower has heretofore delivered furnished ------------------- to Lessorthe Administrative Agent, Agent and Lenderswith a copy for each Lender, the following financial statements and information: following: (i) the audited consolidated and consolidating balance sheets of Lessee the Company and its Consolidated Subsidiaries as at December 31, 19961995, 1996 and 1997 and the related audited consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows for each of Lessee and its Subsidiaries for the fiscal year then endedyears ended on said dates, together with a true and correct copy of the report on such audited information by Xxxxxx Xxxxxxxx LLP; (ii) the unaudited consolidated and consolidating audited balance sheets of Lessee MAGIC and its Consolidated Subsidiaries as at June 30May 31, 1995, 1996 and 1997 and the related unaudited audited consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows for each of Lessee the fiscal years ended on said dates, together with a true and correct copy of the report on such audited information by Coopers & Xxxxxxx L.L.P.; and (iii) the audited balance sheet of MAGIC and its Consolidated Subsidiaries as at February 28, 1998 and the related audited consolidated statements of operations, stockholders' equity and cash flows for the three months then ended. nine- month period ended on said date, together with a true and correct copy of the report on such audited information by Xxxxxx Xxxxxxxx, LLP. (b) All such financial statements were prepared referred to in conformity with GAAP and the preceding paragraph (a) fairly present the financial position (on a consolidated and, where applicable, consolidating basis) condition of the respective entities described in such financial statements as at the respective dates thereof dates, and the respective financial results of operations and cash flows operations, as the case may be, for the respective periods on said respective dates, all in accordance with GAAP (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statementsclause (iii) above, to changes resulting from audit and normal year-end audit adjustments). Neither Lessee the Company nor any of its Subsidiaries has (and will not following on the Initial Borrowing Date) have Amendment/Restatement Effective Date any Contingent Obligationmaterial contingent liabilities, contingent liability or liability liabilities for taxes, long-term lease or unusual forward or long-term commitment that is not commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said financial statements as at said dates or as permitted hereby. Since December 31, 1997, there has been no material adverse change in the foregoing consolidated financial statements or the notes thereto and which in any such case is material in relation to the businesscondition, operations, properties, assets, condition (financial or otherwise) business or prospects taken as a whole of Lessee or any of the Company and its Consolidated Subsidiaries (other than MAGIC and its Subsidiaries) from that set forth in the relevant financial statements described above as at said date. Since February 28, 1998, there has been no material adverse change in the consolidated financial condition, operations, business or prospects taken as a whole of MAGIC and its Subsidiaries from that set forth in the relevant financial statements described above as at said date. (Bc) Except as fully disclosed The pro forma balance sheet referred to in Section 7.01(n) (i) has --- ----- been prepared based on the financial statements delivered pursuant best information available to Section 5(c)(A), there were the Borrower as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee date of delivery thereof, and presents fairly on a pro forma basis the estimated --- ----- financial position of Borrower and its consolidated Subsidiaries of any nature whatsoever (whether absoluteas of, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in year ended, as applicable, December 31, 1997, after giving effect to the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeMAGIC Transaction.

Appears in 1 contract

Samples: Credit Agreement (Applied Business Telecommunications)

Financial Condition. (A) Lessee The Seller has heretofore delivered to Lessorthe Purchaser true and correct copies of the following: the unaudited balance sheet of WAIG as of March 31, Agent and Lenders1997, the following financial audited balance sheet of WAIG as of March 31, 1996 and December 31, 1994, the unaudited statements of income, statements of retained earnings, and information: (i) statements of cash flows of WAIG for the year ended March 31, 1997, and the audited consolidated statements of income, statements of retained earnings and consolidating balance sheets statements of Lessee and its Subsidiaries as at December cash flows for the fifteen (15) months ended March 31, 1996, and the related consolidated year ended December 31, 1994. Each such balance sheet presents fairly the financial conditions, assets, liabilities, and consolidating statements of income, stockholders' equity of WAIG as of its date; each such statement of income and cash flows statement of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and retained earnings presents fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations of WAIG for the period indicated and their retained earnings as of the date indicated; and each such statement of cash flows (on a consolidated and, where applicable, consolidating basis) of presents fairly the entities described therein for each of information purported to be shown therein. The financial statements referred to in this Section 2.3 have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods then endedinvolved and are in accordance with the books and records of WAIG. Since March 31, subject, 1997: (a) There has at no time been a material adverse change in the case financial condition, results of any such unaudited financial statementsoperations, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or liabilities, or, to the Seller's knowledge, the future prospects of Lessee or any of its SubsidiariesWAIG. (Bb) Except as fully disclosed WAIG has not authorized, declared, paid, or effected any dividend or liquidating or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of any stock of WAIG. (c) The operations and business of the WAIG have been conducted in all respects only in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever ordinary course. (whether absolute, accrued, contingent or otherwise and d) WAIG has not suffered an extraordinary loss (whether or not duecovered by insurance) whichor waived any right of substantial value. (e) WAIG has not paid any expense resulting from the preparation of, either individually or in aggregatethe transactions contemplated by, could reasonably be expected this Agreement, it being understood that the Seller shall have paid or will pay all such expenses (including, without limitation, its legal expenses resulting from this Agreement or the transactions contemplated hereby). There is no fact known to be material to Lessee the Seller, which materially and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually adversely affects or in the aggregatefuture (as far as the Seller can reasonably foresee) may materially and adversely affect the financial condition, could reasonably be expected results of operations, business, properties, assets, liabilities, or future prospects of WAIG; PROVIDED, HOWEVER, that the Seller express no opinion as to be material to Lessee and its Subsidiaries taken as a wholepolitical or economic matters of general applicability.

Appears in 1 contract

Samples: Stock Purchase Agreement (Olympic Cascade Financial Corp)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) The consolidated balance sheet of the audited consolidated and consolidating balance sheets of Lessee Guarantor and its consolidated Subsidiaries as at of December 31, 1996, 2013 and the related consolidated and consolidating statements of incomeincome for the fiscal year ended on such date, stockholders' equity reported on by the Guarantor’s independent public accountants, copies of which have heretofore been furnished to the Trustee, the Administrative Agent and cash flows the Letter of Lessee Credit Agent, are complete and correct, in all material respects, and present fairly the financial condition of the Guarantor and its consolidated Subsidiaries as at such date, and the results of operations for the fiscal year then ended. Such financial statements, including any related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the external auditors and as disclosed therein, if any). (ii) Except as disclosed in Schedule V attached hereto, neither the unaudited Guarantor nor its consolidated and consolidating balance sheets of Lessee and its Subsidiaries as had, at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) date of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated andmost recent balance sheet referred to above, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial guarantee obligation, contingent liability (as defined in accordance with GAAP), or liability for taxes, any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto, except for guarantees, indemnities or similar obligations of the Guarantor or a consolidated Subsidiary supporting obligations of one Subsidiary to another Subsidiary. (iii) During the period from December 31, 2013 to and which including the date hereof, except as disclosed in Schedule V attached hereto, neither the Guarantor nor its consolidated Subsidiaries has sold, transferred or otherwise disposed of any such case is material part of its business or property, nor has it purchased or otherwise acquired any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Guarantor and its consolidated Subsidiaries of any nature whatsoever (whether absoluteat December 31, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole2013.

Appears in 1 contract

Samples: Guaranty (Bunge LTD)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee the Borrower and its consolidated Subsidiaries as at December 31August 30, 19962008, August 29, 2009 and August 28, 2010, and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates (collectively, (ii) the unaudited “Historical Financials”), reported on by and accompanied by an unqualified report from Ernst & Young LLP, present fairly the consolidated and consolidating balance sheets financial condition of Lessee the Borrower and its consolidated Subsidiaries as at June 30such date, 1997 and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years then ended. The unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at February 26, 2011, and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows for the 6-month period ended on such date (collectively, the “Interim Financials”), present fairly in all material respects the consolidated financial condition of Lessee the Borrower and its consolidated Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the three months 6-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee nor All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein) and the omission in unaudited consolidated financial statements of the information and footnotes not required under GAAP to be included in interim unaudited financial information. As of the Closing Date and except as set forth on Schedule 4.1, no Group Member has any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial Guarantee Obligations, contingent liability or liability liabilities and liabilities for taxes, or any long-term lease leases or unusual forward or long-term commitment commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that is are not reflected in the foregoing most recent financial statements or referred to in this paragraph. During the notes thereto period from August 28, 2010 to and which in including the date hereof there has been no Disposition by any such case is Group Member of any material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any part of its Subsidiariesbusiness or property. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (MSC Industrial Direct Co Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 1996, 2010 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of Lessee which have heretofore been furnished to each Bank or will be furnished to each Bank that has not already received such copies, present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries as at June 30, 1997 2011 and the related unaudited consolidated consolidating statement of operations and retained earnings for the portion of the fiscal year ended on June 30, 2011, present fairly the consolidating statements financial condition of income, stockholders' equity and cash flows of Lessee the Company and its consolidated Subsidiaries as at such date, and the consolidating results of their operations for the three months fiscal year then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or referred to in the notes thereto thereto. During the period from June 30, 2011 to and which in including the Closing Date, there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of their consolidated business or property and no purchase or other acquisition of any business or property (including any Capital Stock of any other Person) material in relation to the businessconsolidated financial condition of the Company and its consolidated Subsidiaries at June 30, operations, properties, assets, condition (financial 2011 except as disclosed in writing to the Banks prior to the Closing Date or otherwise) or prospects of Lessee or disclosed in any of its Subsidiariesthe Company’s filings with the Securities and Exchange Commission prior to the date hereof. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Arrow Electronics Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Parent Borrower and its consolidated Subsidiaries as at December 31, 19962016 and December 31, 2015, respectively, and the related consolidated and consolidating statements of income, stockholders' equity operations and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by BDO USA, LLP, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Parent Borrower and its consolidated Subsidiaries as at June 30such dates, 1997 and the related unaudited consolidated and consolidating statements results of income, stockholders' equity their operations and of their cash flows of Lessee and its Subsidiaries for the three months fiscal years then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, were, as of the date prepared, prepared in accordance with GAAP applied consistently throughout the periods involved (except as otherwise expressly noted therein), and show all material Indebtedness and other liabilities, direct or contingent, of the Parent Borrower and each of its Subsidiaries as of the dates thereof, including liabilities for Taxes, material commitments and Indebtedness. Neither Lessee the Parent Borrower nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheets referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxesTaxes, or any material long-term lease or unusual material forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is thereto. (b) As of the date hereof, there are no material in relation to liabilities or obligations of the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Parent Borrower or any of its Subsidiaries. , whether direct or indirect, absolute or contingent, or matured or unmatured, other than (Bi) Except as fully disclosed or provided for in the financial statements delivered pursuant and notes thereto which are referred to Section 5(c)(A)above, there were as or (ii) which are disclosed elsewhere in this Agreement or in the Schedules hereto, or (iii) arising in the ordinary course of business since December 31, 2016 or (iv) created by this Agreement. As of the Initial Borrowing Date no liabilities or obligations date hereof, the written information, exhibits and reports furnished by the Parent Borrower to the Lenders in connection with respect to Lessee and its Subsidiaries the negotiation of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed are complete and correct in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be all material to Lessee and its Subsidiaries taken as a wholerespects.

Appears in 1 contract

Samples: Credit Agreement (Henry Schein Inc)

Financial Condition. (A) Lessee has Borrowers have heretofore delivered delivered, or caused to Lessorbe delivered, Agent and to Lenders, at Lenders' request, the following financial statements and information: (i) the audited consolidated balance sheet of Borrowers and consolidating balance sheets of Lessee and its their Subsidiaries as at December 31, 19962000 and December 31, 1999 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Borrowers and its their Subsidiaries for the fiscal year Fiscal Years then ended, and (ii) the unaudited consolidated balance sheet of Borrowers and consolidating balance sheets of Lessee and its their Subsidiaries as at June 30March 31, 1997 2001 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and cash flows of Lessee Borrowers and its their Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to the absence of footnotes and to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has Borrowers do not (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto or which has not otherwise been disclosed to Administrative Agent and approved by Administrative Agent, such approval not to be unreasonably withheld, and which in any such case (but excluding, in all events, any and all such Contingent Obligations and other liabilities between and among Borrowers and the Subsidiary Guarantors) is material in relation to the business, operations, properties, assets, financial condition (financial or otherwise) or prospects of Lessee Borrowers or any of its their Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (La Quinta Corp)

Financial Condition. (A) Lessee Purchaser has heretofore delivered to Lessor, Agent the Seller true and Lenders, correct copies of the following financial statements and informationfollowing: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries Purchaser as at of December 31, 1996, 1997, and 1998; the related audited consolidated and consolidating statements statement of income, consolidated statement of retained earnings, and consolidated statement of cash flows of Purchaser for the period ended December 31, 1996 and for the years ended December 31, 1997 and 1998; unaudited consolidated balance sheets of Purchaser as of March 31, 1998 and 1999, June 30, 1998 and 1999, and September 30, 1998 and 1999; the unaudited consolidated statement of income, consolidated statement of retained earnings, and consolidated statement of cash flows of Purchaser for the periods ended March 31, 1998 and 1999, June 30, 1998 and 1999, and September 30, 1998 and 1999. Each such consolidated balance sheet presents fairly the consolidated financial condition, assets, liabilities, and stockholders' equity of Purchaser and cash flows the Purchaser Subsidiaries as of Lessee its date; each such consolidated statement of income and its consolidated statement of retained earnings presents fairly the consolidated results of operations of Purchaser and the Purchaser Subsidiaries for the fiscal year then endedperiod indicated; and each such consolidated statement of cash flows presents fairly the information purported to be shown therein. The financial statements referred to in this Section 3.05 have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved and are in accordance with the books and records of Purchaser and the Purchaser Subsidiaries. Since December 31, (ii) the unaudited consolidated 1998 and consolidating balance sheets of Lessee and its Subsidiaries as at June September 30, 1997 and 1999, except as set forth in the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared Purchaser SEC Documents: (a) There has at no time been a material adverse change in conformity with GAAP and fairly present the financial position (on a consolidated andcondition, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated andoperations, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or liabilities, or, to the best knowledge of Purchaser and HEcom, future prospects of Lessee Purchaser or any Purchaser Subsidiary; and each of its SubsidiariesPurchaser and each of the Purchaser Subsidiaries has operated consistently in all material respects with the results of operations referred to in Last Purchaser Financial Statements. (Bb) Except as fully disclosed Neither Purchaser nor any Purchaser Subsidiary has authorized, declared, paid, or effected any dividend or liquidating or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of any stock of Purchaser or any Purchaser Subsidiary. (c) The operations and business of Purchaser and each Purchaser Subsidiary have been conducted in all material respects only in the financial statements delivered pursuant to Section 5(c)(A)ordinary course of business consistent with past practice. (d) There has been no accepted purchase order or quotation, there were as arrangement, or understanding for future sale of the Initial Borrowing Date no liabilities products or obligations with respect to Lessee and its Subsidiaries services of Purchaser or of any nature whatsoever Purchaser Subsidiary which in the reasonable expectation of Purchaser will not be profitable. (whether absolute, accrued, contingent or otherwise and e) Neither Purchaser nor any Purchaser Subsidiary has suffered an extraordinary loss (whether or not duecovered by insurance) whichor waived any right of substantial value. (f) Neither Purchaser nor any Purchaser Subsidiary has paid or incurred any tax, either individually other liability, or in aggregateexpense resulting from the preparation of, could reasonably be expected or the transactions contemplated by, the Transaction Agreements. There is no fact known to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of Purchaser or any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually Purchaser Subsidiary which materially adversely affects or in the aggregatefuture (as far as Purchaser or any Purchaser Subsidiary can foresee) may materially adversely affect the financial condition, could reasonably be expected results of operations, business, properties, assets, liabilities, or future prospects of Purchaser or of any Purchaser Subsidiary, including HEcom; provided, however, that Purchaser and HEcom express no opinion as to be material to Lessee and its Subsidiaries taken as a wholepolitical or economic matters of general applicability.

Appears in 1 contract

Samples: Asset Purchase Agreement (Claimsnet Com Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and unaudited consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as provided for in subsection 6.1[a] and [b]) as at December 31, 19961998, and the related audited consolidated and consolidating (and, as to statements of income, stockholders' unaudited consolidating) statements of income, equity and cash flows flow of Lessee the Company and its consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as provided for in subsection 6.1[a] and [b]) for the fiscal year then endedended on said date, (ii) with the opinion thereon of Deloitte & Touche heretofore furnished to each of the Banks, and the unaudited consolidated and unaudited consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as provided for in subsection 6.1[a] and [b]) as at June 30March 31, 1997 1999, and the their related unaudited consolidated and consolidating (and, as to statements of income, stockholders' unaudited consolidating) statements of income, equity and cash flows flow of Lessee the Company and its consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as provided for in subsection 6.1[a] and [b]) for the three months then ended. All (3) month period ended on such statements were prepared in conformity with GAAP date heretofore furnished to the Agent, are complete and correct and fairly present the consolidated financial position condition of the Company and its consolidated Subsidiaries (on a consolidated and, where if applicable, consolidating basiseach Permitted Joint Venture, as provided for in subsection 6.1[a] and [b]) of the entities described in such financial statements as at the respective said dates thereof and the results of its operations for the fiscal year and cash flows the three (3) month period on said dates, all in accordance with GAAP, as applied on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, consistent basis (subject, in the case of any such unaudited the interim financial statements, to changes resulting from audit and normal year-end adjustments). Neither Lessee the Company nor any of its Subsidiaries Subsidiary has (and will not following on the Initial Borrowing Date) have Closing Date any Contingent Obligationmaterial Debt, contingent liability or liability liabilities, liabilities for taxes, long-term lease or unusual forward or long-term commitment that is not commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the foregoing financial statements Financial Statements or in Schedule 7.1. Since the notes thereto and which in date of the Financial Statements, neither the business nor the Property of the Company, any such case is material in relation Subsidiary or, to the businessbest of our knowledge, operationsany Permitted Joint Venture have been materially and adversely affected as a result of any fire, propertiesexplosion, assetsearthquake, condition (financial flood, drought, windstorm, accident, strike or otherwise) other labor disturbance, embargo, requisition or prospects taking of Lessee Property or cancellation of contracts, permits or concessions by any Governmental Authority, riot, activities of its Subsidiariesarmed forces or acts of God or of any public enemy. (Bb) Except as fully disclosed The unaudited consolidated financial statements of EPCO for the fiscal quarter ended March 31, 1999, copies of which have heretofore been delivered to each Bank, have been prepared in accordance with GAAP and present fairly the financial statements delivered pursuant to Section 5(c)(A)condition, there were as results of the Initial Borrowing Date no liabilities or obligations with respect to Lessee operation and changes in financial position of EPCO and its Subsidiaries of any nature whatsoever (whether absoluteSubsidiaries, accrued, contingent as at the date or otherwise dates and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability period or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeperiods stated.

Appears in 1 contract

Samples: Credit Agreement (Enterprise Products Partners L P)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at December 31January 28, 1996, 1996 and the related consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June 30April 21, 1997 1996, July 14, 1996 and October 6, 1996, and the related unaudited consolidated and consolidating statements of incomeoperations, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the three months fiscal quarters then ended, and (iii) the unaudited consolidated balance sheets of Company and its Subsidiaries as at November 3, 1996, December 1, 1996, December 29, 1996, and March 2, 1997 and the related consolidated statements of operations, stockholders' equity and cash flows of Company and its Subsidiaries for the fiscal month then ended and for the fiscal year-to-date fiscal periods then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any None of its Subsidiaries the Loan Parties has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or 98 otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A)Loan Parties, there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As , other than (i) the incurrence of the Initial Borrowing DateObligations and (ii) contingent obligations or liabilities for taxes, Lessee does not know of any basis for the assertion against it of any liability long-term leases or obligation of any nature whatsoever that is not fully forward or long-term commitments disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeon Schedule 5.3 annexed hereto.

Appears in 1 contract

Samples: Credit Agreement (Bay Area Warehouse Stores Inc)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at December 31, 19961994 and December 30, 1995 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the fiscal year Fiscal Years then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee Company and its Subsidiaries as at June March 30, 1997 1996 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the three months then ended, (iii) the audited consolidated balance sheets of Smitty's and its Subsidiaries as at July 30, 1994 and July 30, 1995 and the related consolidated statements of income, stockholders' equity and cash flows of Smitty's and its Subsidiaries for the Fiscal Years then ended, and (iv) the unaudited consolidated balance sheets of Smitty's and its Subsidiaries as at April 7, 1996 and the related unaudited consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for the nine months then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any None of its Subsidiaries has the Loan Parties (and will not following the Initial Borrowing Datefunding of the initial Loans) have has any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries Loan Parties taken as a whole. As , other than (i) the incurrence of the Initial Borrowing DateObligations and obligations under other Related Agreements, Lessee does not know of any basis (ii) contingent obligations or liabilities for the assertion against it of any liability taxes, long 121 term leases or obligation of any nature whatsoever that is not fully forward or long term commitments and (iii) other items disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeon Schedule 4.1B annexed hereto.

Appears in 1 contract

Samples: Credit Agreement (Smiths Food & Drug Centers Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, The Consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Company and its Consolidated Subsidiaries as at December 31, 19962000 and the related Consolidated statements of earnings and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of which have heretofore been furnished to each Lender, present fairly the Consolidated financial condition of the Company and its Consolidated Subsidiaries as at such date, and the related consolidated Consolidated results of their operations and consolidating statements of income, stockholders' equity and their Consolidated cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) . The unaudited Consolidated balance sheet of the unaudited consolidated and consolidating balance sheets of Lessee Company and its Consolidated Subsidiaries as at June 30March 31, 1997 2001 and the related unaudited consolidated and consolidating Consolidated statements of income, stockholders' equity earnings and of cash flows for the three-month period ended on such date, certified by a Responsible Officer, copies of Lessee which have heretofore been furnished to each Lender, present fairly the Consolidated financial condition of the Company and its Consolidated Subsidiaries as at such date, and the Consolidated results of their operations and their Consolidated cash flows for the three months three-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end adjustmentsaudit adjustments and the absence of notes). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved as required by GAAP (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its Consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any Interest Rate Protection Agreement or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except as set forth in Schedule 7.1, during the period from December 31, 2000 to and which in including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its Consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the businessConsolidated financial condition of the Company and its Consolidated Subsidiaries at December 31, operations2000. . Since December 31, properties2000, assetsthere has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect and during the period from December 31, condition (financial 2000 to and including the date hereof, except as set forth in Schedule 7.2, no dividends or otherwise) other distributions have been declared, paid or prospects made upon the Capital Stock of Lessee the Company or any of its Subsidiaries nor has any of the Capital Stock of the Company or any of its Subsidiaries been redeemed, retired, purchased or otherwise acquired for value by the Company or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Restatement Date, after giving effect to the transactions contemplated by the Loan Documents to occur on the Restatement Date, and as of each Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee Company and its Subsidiaries taken as will be Solvent on a wholeConsolidated basis.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets unaudited financial statements of Lessee Company and its Subsidiaries as at December 31for the fiscal periods most recently ended more than 30 days prior to the Closing Date (including, 1996without limitation monthly financial statements for any such period of less than three months), consisting of a balance sheet and the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such three-month period or, if applicable, such one-month period, all in reasonable detail and certified by the chief financial officer of Lessee Company that they fairly present the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, (ii) pro forma consolidated balance sheets of Company and its Subsidiaries as at the Closing Date, prepared in accordance with GAAP (except as otherwise noted therein) and giving effect to the amendments contemplated by this Agreement and (iii) projected financial statements (including balance sheets and statements of operations and cash flows) of the Company and its Subsidiaries for the fiscal eight- year then ended, (ii) period after the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then endedClosing Date. All such statements (other than the pro forma balance sheet but only to the extent noted therein) were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any None of its Subsidiaries has the Loan Parties (and will not following the Initial Borrowing Datefunding of the initial Loans) have has any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries Loan Parties taken as a whole. As , other than (i) the incurrence of the Initial Borrowing DateObligations and obligations under other Related Agreements, Lessee does not know of (ii) contingent obligations or liabilities for taxes, long term leases or forward or long term commitments and (iii) any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully other items disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeon Schedule 5.3 annexed thereto.

Appears in 1 contract

Samples: Credit Agreement (Smiths Food & Drug Centers Inc)

Financial Condition. (Aa) Lessee has heretofore Credit Parties have delivered to Lessor, Agent and Lenders, the following Purchasers the audited annual financial statements of the Company dated as of June 30, 2018, including the statement of financial position and information: the related statements of operations and comprehensive loss as of and for the periods then ended (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31, 1996“Last Audited Financial Statements”), and the related consolidated and consolidating unaudited quarterly financial statements of incomethe Company dated as of December 29, stockholders' equity and cash flows 2018, including the statement of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30, 1997 financial position and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) comprehensive loss as of the entities described therein and for each of the periods then endedended (the “Last Unaudited Financial Statements” and, subjectwith the Last Audited Financial Statements, collectively, the “Company Historical Financial Statements”). (b) The Company Historical Financial Statements have been prepared in accordance with IFRS consistently applied during the case of any such unaudited financial statements, to changes resulting from audit and periods involved (except for normal recurring year-end adjustments. Neither Lessee nor any adjustments (the effect of its Subsidiaries has (and which will not following the Initial Borrowing Date) have any Contingent Obligationnot, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected material)). The Company Historical Financial Statements fairly present in all material respects the assets, liabilities and financial position of the Company and its results of operations and changes in financial position and cash flows as of the respective dates and for the periods specified, all in accordance with IFRS consistently applied during the periods involved. The Company Historical Financial Statements are consistent with the books and records of the Company, which books and records are accurate and complete in all material respects. The Company has made and kept true, correct and complete books and records and accounts, which accurately and fairly reflect, in reasonable detail, the activities of the Company in all material respects and which have been maintained in accordance with sound business practices and applicable law. There has been no material change in the accounting methods or practices of the Company since the earliest date covered by the Company Historical Financial Statements, except as disclosed therein or in subsequent financial statements forming part of the Company Public Disclosure Record. (c) Since June 30, 2018, there has been no Material Adverse Effect. (d) Neither any Credit Party nor any Subsidiary has any Indebtedness (other than Indebtedness permitted pursuant to be material Section 8.2) or any Contingent Obligations (other than Contingent Obligations permitted pursuant to Lessee Section 8.8) other than as set forth in the Last Unaudited Financial Statements. Pro forma consolidated statement of financial position of the Company and its Subsidiaries taken as of the Closing Date after giving effect to the issuance of the Notes (the “Pro Forma Balance Sheet”) but not any application of the proceeds have been delivered to the Purchasers. The Pro Forma Balance Sheet presents fairly in all material respects, the estimated financial position of the Company and the Subsidiaries in accordance with IFRS as of the Closing Date. (e) The Company’s auditors, who audited the Last Audited Financial Statements (as applicable) and who provided their audit report thereon, are independent public accountants as required under applicable securities Laws and there has never been a wholereportable event (within the meaning of NI 51-102) between the Company and the Company’s auditors. (f) Except as set forth in Schedule 5.12 or the Company Public Disclosure Record, none of the directors, officers or employees of the Company or any of its Subsidiaries or any person who owns, directly or indirectly, more than ten percent (10%) of any class of securities of the Company or Holdings or securities of any person exchangeable for more than ten percent (10%) of any class of securities of the Company or Holdings, or to the knowledge of the Company, any associate or affiliate of any of the foregoing had or has any material interest, direct or indirect, in any transaction or any proposed transaction with the Company or Holdings or any of either of their Subsidiaries.

Appears in 1 contract

Samples: Securities Purchase Agreement

Financial Condition. (Aa) Lessee has heretofore Qualified Stockholders have delivered to Lessor, Agent the Purchaser and Lenders, attached hereto as Schedule 2.03 true and correct copies of the following financial statements unaudited balance sheet ("Interim Balance Sheet") and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at December 31, 1996, and the related consolidated and consolidating statements of income, stockholders' equity retained earnings and cash flows of Lessee and its Subsidiaries EWI for the fiscal year then endedperiod from July 1, (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at 1996 through June 30, 1997 ("Interim Financial Statements"). At Closing, Qualified Stockholders shall provide final unaudited balance sheet ("Closing Balance Sheet") and the related unaudited consolidated and consolidating statements of income, stockholders' equity retained earnings and cash flows of Lessee and its Subsidiaries EWI for the three months then endedperiod beginning July 1, 1997 and ending on the Effective Time (the "Closing Financial Statements"). All such The financial statements were referred to in this ss.2.03 have been prepared in conformity accordance with GAAP generally accepted accounting principles ("GAAP") consistently applied throughout the periods involved (except for adjustments thereto which are known to and fairly present expressly approved by Purchaser in writing), are correct and complete in all respects, and are in accordance with the books and records of EWI. There is no fact presently known to EWI which could materially and adversely affect the financial position (on a consolidated andcondition, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated andoperations, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial liabilities, or otherwise) or future business prospects of Lessee the EWI except as disclosed or any recorded on Schedule 2.03, the Closing Financial Statements or the other schedules to this Agreement; provided, however, that Qualified Stockholders express no opinion as to political or economic matters of its Subsidiariesgeneral applicability (except as to market conditions of which a Qualified Stockholder has present knowledge). (Bb) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing DateEffective Time, Lessee does not know the net tangible book value, as set forth on the Closing Financial Statements, will be correct. (c) After Closing, Purchaser's in-house and independent accountants shall be afforded free and full access to the non-proprietary working papers and records used by EWI's independent accountants and in-house accountants in preparing their unaudited last completed fiscal year, Interim and Closing Financial Statements. If there is a difference of opinion between the Purchaser's and EWI's accountants as to the general acceptability or consistency of any basis for of the assertion against it accounting principles followed in connection with such review and report or preparation of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant or the results indicated thereby, the parties or their accountants shall promptly confer in an effort to Section 5(c)(A) whichresolve such differences. If they are unable to resolve a difference, either individually or in the aggregatedifference shall be resolved by the indemnity, could reasonably be expected to be material to Lessee set-off and its Subsidiaries taken as a wholedispute resolution provisions of Sections 1.02 and 1.03.

Appears in 1 contract

Samples: Stock Purchase Agreement (Atc Group Services Inc /De/)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 1996, 2015 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of Lessee which have heretofore been furnished to each Bank or will be furnished to each Bank that has not already received such copies, present fairly the consolidated financial position of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries as at June September 30, 1997 2016 and the related unaudited consolidated consolidating statement of operations and retained earnings for the portion of the fiscal year ended on September 30, 2016, present fairly the consolidating statements financial position of income, stockholders' equity and cash flows of Lessee the Company and its consolidated Subsidiaries as at such date, and the consolidating results of their operations for the three months fiscal year then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or referred to in the notes thereto thereto. During the period from September 30, 2016 to and which in including the Closing Date, there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of their consolidated business or property and no purchase or other acquisition of any business or property (including any Capital Stock of any other Person) material in relation to the businessconsolidated financial condition of the Company and its consolidated Subsidiaries at September 30, operations, properties, assets, condition (financial 2016 except as disclosed in writing to the Banks prior to the Closing Date or otherwise) or prospects of Lessee or disclosed in any of its Subsidiariesthe Company’s filings with the Securities and Exchange Commission prior to the date hereof. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Arrow Electronics Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the -------------------------------- Company and its consolidated Subsidiaries as at December 31, 19961999, and the related consolidated and consolidating statements of incomeearnings, stockholderscash flows and shareholders' equity for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of which have heretofore been furnished to each Lender, are complete and correct in all material respects and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries as at June September 30, 1997 2000 and the related unaudited consolidated and consolidating statements of income, stockholders' equity earnings and of cash flows for the nine-month period ended on such date, certified by a Responsible Officer, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months nine-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following taken as a whole) had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent Obligationmaterial Guaranty, contingent liability or liability for taxes, long-or any long- term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except as disclosed in filings with the Securities and which in Exchange Commission made by the Company on or prior to December 15, 2000 during the period from December 31, 1999 to and including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Company and its consolidated Subsidiaries of at December 31, 1999, other than any nature whatsoever (whether absolutesuch sale, accrued, contingent transfer or otherwise and whether other disposition or not due) which, either individually purchase or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of acquisition that was permitted by the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeExisting Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Federal Mogul Corp)

Financial Condition. (Aa) Lessee The Borrower has heretofore delivered to Lessor, the Administrative Agent and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries the Borrower as at December 31, 19962005, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries the Borrower for the fiscal year Fiscal Year then ended, and (ii) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries the Borrower as at June 30January 31, 1997 2006 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries the Borrower for the three months one month then ended. All such financial statements were prepared in conformity accordance with GAAP (except that any unaudited financial statements are subject to normal year-end adjustments and may not be accompanied by footnotes) and fairly present present, in all material respects, the consolidated financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements Persons as at the respective dates date thereof and the consolidated results of operations and cash flows of such Person for the period then ended. (b) After giving effect to the Loans made on a consolidated andthe Closing Date, where applicable, consolidating basis) the consummation of the entities described therein for each Refinancing and the payment of all transaction costs in connection with the periods then endedforegoing, subject(i) the Obligors taken as a whole are Solvent and (ii) no Obligor has any material liability, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, including reasonably likely contingent liability or liability for taxes, long-term lease or any unusual forward or long-term commitment of a type required to be reflected in financial statements prepared in conformity with GAAP, that is not reflected in the foregoing projections and pro forma financial statements or the notes thereto and which in any such case is material in relation information delivered pursuant to clause (j) of Article III. After giving effect to the businessLoans to be made on the Effective Date and the payment of all transaction costs in connection with the foregoing, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariesthe Obligors taken as a whole are Solvent. (Bc) Except The Borrower maintains disclosure controls and procedures (as fully disclosed defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Obligors and has (i) caused such disclosure controls and procedures to be designed to ensure that material information relating to the Obligors is reported internally, and (ii) caused such internal controls over financial reporting to be designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations for external purposes in accordance with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeGAAP.

Appears in 1 contract

Samples: Loan Agreement (Us Airways Group Inc)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets sheet of Lessee Xxxxxx and its Subsidiaries as at December 31, 19961994, December 31, 1995 and December 31, 1996 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Xxxxxx and its Subsidiaries for the fiscal year Fiscal Years then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee Xxxxxx and its Subsidiaries as at June 30, 1997 and for each month thereafter, and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Xxxxxx and its Subsidiaries for the three months periods then endedending. All Nothing has come to the attention of Holdings or Company which would lead them to believe that any such statements were not prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-year- end adjustments. Neither Lessee nor any As of its Subsidiaries has (and will the date hereof, Company does not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Company or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Price Communications Wireless Inc)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorAgent, Agent and Lendersat Agent's request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets sheet of Lessee Company and its Subsidiaries as at December 31, 1996, 1995 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the fiscal year Fiscal Year then ended, ; (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee Company and its Subsidiaries as at June September 30, 1997 1996 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Company and its Subsidiaries for the three months Fiscal Quarter then ended; and (iii) the audited consolidated balance sheet of Milgray and its Subsidiaries as at September 30, 1996 and the related consolidated statements of income, stockholders' equity and cash flows of Milgray and its Subsidiaries for the fiscal year of Milgray then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee Company nor any Milgray had as of its Subsidiaries has (and will not following the Initial Borrowing Date) have relevant dates of such financial statements any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Company, Milgray or any of its their Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Bell Industries Inc)

Financial Condition. (A) Lessee Company has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee Holdings and its Subsidiaries as at December 31October 28, 19961995, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Holdings and its Subsidiaries for the fiscal year Fiscal Year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee Holdings and its Subsidiaries as at June 30of January 20, 1997 1996, April 13, 1996, and August 3, 1996, and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Holdings and its Subsidiaries for the three months Fiscal Quarters then ended, and (iii) the unaudited consolidated balance sheets of Holdings and its Subsidiaries as at the last day of each of the three most recently ended Fiscal Periods that ended more than 30 days prior to the Closing Date and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries for each such Fiscal Period then ended and for the fiscal year-to-date fiscal period ended on the last day of the most recent of such Fiscal Periods. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any As of its Subsidiaries the Closing Date, none of the Loan Parties has (and will not following the Initial Borrowing Datefunding of the initial Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes 103 111 thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A)Loan Parties, there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As , other than the incurrence of the Initial Borrowing DateObligations and (ii) contingent obligations or liabilities for taxes, Lessee does long-term leases or forward or long-term commitments disclosed on Schedule 5.3 annexed hereto. Immediately prior to and immediately after the Transactions, BDI and BPI own no assets other than Cash and Cash Equivalents or promissory notes issued by Company, which Cash and Cash Equivalents or promissory notes are in amounts not know of any basis less than $90,000 for the assertion against it of any liability or obligation of any nature whatsoever that is BDI and not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeless than $260,000 for BPI.

Appears in 1 contract

Samples: Credit Agreement (Dominicks Supermarkets Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance ------------------- sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 19961996 and December 31, 1997, respectively, and the related consolidated and consolidating statements of incomeearnings, stockholderscash flows and shareholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year years ended on such dates, reported on by Ernst & Young LLP, copies of which have heretofore been furnished to each Lender, are complete and correct in all material respects and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such dates, and the consolidated results of their operations and their consolidated cash flows for the fiscal years then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries as at June 30, 1997 1998 and the related unaudited consolidated and consolidating statements of income, stockholders' equity earnings and of cash flows for the six-month period ended on such date, certified by a Responsible Officer, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months six-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following taken as a whole) had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent Obligationmaterial Guaranty, contingent liability or liability for taxes, long-or any long- term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except as disclosed in filings with the Securities and which in Exchange Commission made by the Company on or prior to September 10, 1998, during the period from December 31, 1997 to and including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the businessconsolidated financial condition of the Company and its consolidated Subsidiaries at December 31, operations1997, propertiesother than any such sale, assets, condition (financial transfer or otherwise) other disposition or prospects of Lessee purchase or any of its Subsidiariesacquisition that would have been permitted by this Agreement if this Agreement had been in effect at all times during such period. (Bb) Except The unaudited projected pro forma consolidated balance sheet of --- ----- the Company and its consolidated Subsidiaries as fully disclosed in at December 31, 1998 (including the financial statements delivered pursuant to Section 5(c)(Anotes thereto) (the "Pro Forma Balance Sheet"), there were copies of which have heretofore been furnished to each Lender, has been prepared after giving effect on a projected basis to (i) the consummation of the Xxxxxx Automotive Acquisition, (ii) the Loans to be made hereunder and the use of proceeds thereof and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet has been prepared based on the best information available to the Company as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee date of delivery thereof, and presents fairly on a projected pro forma basis the estimated financial position of the Company --- ----- and its consolidated Subsidiaries of any nature whatsoever (whether absoluteas at December 31, accrued1998, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected after giving effect to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed events specified in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholepreceding sentence.

Appears in 1 contract

Samples: Loan Agreement (Federal Mogul Corp)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 1996, 2002 and the related consolidated and consolidating statements of income, stockholders' equity income and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of Lessee which have heretofore been furnished to each Bank or will be furnished to each Bank that has not already received such copies, present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries by legal entity (with respect to Subsidiaries organized under the laws of the United States and Canada) and by principal operating group (with respect to other Subsidiaries) as at June September 30, 1997 2003 and the related unaudited consolidated consolidating statement of operations and retained earnings for the portion of the fiscal year ended on September 30, 2003, present fairly the consolidating statements financial condition of income, stockholders' equity and cash flows of Lessee the Company and its consolidated Subsidiaries by legal entity (with respect to Subsidiaries organized under the laws of the United States and Canada) and by principal operating group (with respect to other Subsidiaries) as at such date, and the consolidating results of their operations for the three months fiscal year then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or referred to in the notes thereto thereto. During the period from September 30, 2003 to and which in including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of its business or property (other than the sale of certain Microtronica businesses) and no purchase or Arrow Electronics Credit Agreement other acquisition of any business or property (including any Capital Stock of any other Person) material in relation to the businessconsolidated financial condition of the Company and its consolidated Subsidiaries at September 30, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except 2003 except as fully disclosed in writing to the financial statements delivered pursuant Banks prior to Section 5(c)(Athe Closing Date), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Arrow Electronics Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Borrower and its consolidated Subsidiaries as at December 3125, 19962004 and December 27, 2003, respectively, and the related consolidated and consolidating statements of income, stockholders' equity operations and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by BDO Sxxxxxx, LLP, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Borrower and its consolidated Subsidiaries as at June 30such dates, 1997 and the related unaudited consolidated and consolidating statements results of income, stockholders' equity their operations and of their cash flows of Lessee and its Subsidiaries for the three months fiscal years then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, were, as of the date prepared, prepared in accordance with GAAP applied consistently throughout the periods involved (except as otherwise expressly noted therein, and show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and each of its Subsidiaries as of the dates thereof, including liabilities for taxes, material commitments and Indebtedness. Neither Lessee the Borrower nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheets referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxes, or any material long-term lease or unusual material forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is thereto. (b) As of the date hereof, there are no material in relation to liabilities or obligations of the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. , whether direct or indirect, absolute or contingent, or matured or unmatured, other than (Bi) Except as fully disclosed or provided for in the financial statements delivered pursuant and notes thereto which are referred to Section 5(c)(A)above, there were as or (ii) which are disclosed elsewhere in this Agreement or in the Schedules hereto, or (iii) arising in the ordinary course of business since December 25, 2004 or (iv) created by this Agreement. As of the Initial Borrowing Date no liabilities or obligations date hereof, the written information, exhibits and reports furnished by the Borrower to the Lenders in connection with respect to Lessee and its Subsidiaries the negotiation of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed are complete and correct in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be all material to Lessee and its Subsidiaries taken as a wholerespects.

Appears in 1 contract

Samples: Credit Agreement (Schein Henry Inc)

Financial Condition. (A) Lessee Borrower has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated pro forma financial statements of Xxxxxxx-Xxxxxxx'x Wireless Products Group for Fiscal Years 1997 and consolidating 1998, consisting of balance sheets of Lessee and its Subsidiaries as at December 31, 1996, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows for such Fiscal Years, prepared in accordance with GAAP and reflecting the consummation of Lessee the Recapitalization, the related financings and its Subsidiaries for the fiscal year then endedother transactions contemplated by the Loan Documents and the Related Agreements, and (ii) the unaudited consolidated pro forma financial statements of Xxxxxxx-Xxxxxxx'x Wireless Products Group for Fiscal Quarters ending March 26, 1999, June 25, 1999, and consolidating September 24, 1999, consisting of balance sheets of Lessee and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows for such Fiscal Quarters, prepared in accordance with GAAP and reflecting the consummation of Lessee the Recapitalization, the related financings and its Subsidiaries for the three months then endedother transactions contemplated by the Loan Documents and the Related Agreements. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has Borrower does not (and will not following the Initial Borrowing Datefunding of the initial Loans, except as otherwise permitted by this Credit Agreement) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Wj Communications Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Borrower and its consolidated Subsidiaries as at December 31, 19962022 and December 31, 2021, respectively, and the related consolidated and consolidating statements of income, stockholders' equity operations and of cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by BDO USA, LLP, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Borrower and its consolidated Subsidiaries as at June 30such dates, 1997 and the related unaudited consolidated and consolidating statements results of income, stockholders' equity their operations and of their cash flows of Lessee and its Subsidiaries for the three months fiscal years then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit including the related schedules and normal year-end adjustmentsnotes thereto, were, as of the date prepared, prepared in accordance with GAAP applied consistently throughout the periods involved (except as otherwise expressly noted therein), and show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and each of its Subsidiaries as of the dates thereof, including liabilities for Taxes, material commitments and Indebtedness. Neither Lessee the Borrower nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheets referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxesTaxes, or any material long-term lease or unusual material forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is thereto. (b) As of the date hereof, there are no material in relation to liabilities or obligations of the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. , whether direct or indirect, absolute or contingent, or matured or unmatured, other than (Bi) Except as fully disclosed or provided for in the financial statements delivered pursuant and notes thereto which are referred to Section 5(c)(A)above, there were as or (ii) which are disclosed elsewhere in this Agreement or in the Schedules hereto, or (iii) arising in the ordinary course of business since December 31, 2022 or (iv) created by this Agreement. As of the Initial Borrowing Date no liabilities or obligations date hereof, the written information, exhibits and reports furnished by the Borrower to the Lenders in connection with respect to Lessee and its Subsidiaries the negotiation of any nature whatsoever (whether absolutethis Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed are complete and correct in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be all material to Lessee and its Subsidiaries taken as a wholerespects.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Henry Schein Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: Each of (i) the audited consolidated and consolidating balance sheets sheet of Lessee Holdings and its Subsidiaries as at dated December 31, 199620162021, and the related audited consolidated and consolidating statements of incomeincome or operations, stockholders' shareholders’ equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, Fiscal Year ended on that date and (ii) the unaudited interim consolidated and consolidating balance sheets sheet of Lessee Holdings and its Subsidiaries as at June dated September 30, 1997 2017March 31, 2022 and the related unaudited consolidated and consolidating statements of income, stockholders' shareholders’ equity and cash flows of Lessee and its Subsidiaries for the three nine fiscal months then ended. All such statements , in each case, as attached hereto as Schedule 5.11(a): (i) were prepared in conformity accordance with GAAP (except, in the case of unaudited statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto); and (ii) fairly present in all material respects the consolidated financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements Company and its consolidated subsidiaries as at the respective dates thereof and the their consolidated results of operations and consolidated cash flows (on a consolidated and, where applicable, consolidating basis) of for the entities described therein for each of the respective periods then ended, ended (subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor audit adjustments and to any of its other adjustments described therein, including in any notes thereto). (b) [Reserved.] (c) Since December 31, 20162021, there has been no Material Adverse Effect. (d) The Loan Parties and their Subsidiaries has (and will not following the Initial Borrowing Datei) have any Contingent Obligationno Indebtedness other than Indebtedness permitted pursuant to Section 7.05 and (ii) as of the SecondThird Amendment Effective Date, have no other contingent liability liabilities or liability liabilities for taxes, long-term lease leases or unusual forward or long-term commitment commitments except for contingent liabilities or liabilities for long-term leases or unusual forward or long-term commitments that is not are reflected or reserved against in the foregoing financial statements referred to in Section 5.11(a) or the notes thereto and which in any such case is are material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its the Loan Parties and their respective Subsidiaries. (Be) Except as fully disclosed in All financial performance projections delivered to the Administrative Agent represent the Parent Borrower’s best good faith estimate of future financial statements delivered pursuant to Section 5(c)(A), there were as of performance and are based on assumptions believed by the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected Parent Borrower to be material fair and reasonable in light of current market conditions, it being acknowledged and agreed by the Administrative Agent and the Lenders that projections as to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does future events are not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee viewed as facts and its Subsidiaries taken as a wholethat the actual results during the period or periods covered by such projections may differ from the projected results.

Appears in 1 contract

Samples: Abl Credit Agreement (Steinway Musical Instruments Holdings, Inc.)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee the Company and its consolidated Subsidiaries as at December 31, 1995 and December 31, 1996, respectively, and the related consolidated and consolidating statements of incomeearnings, stockholderscash flows and shareholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then endedyears ended on such dates, (ii) reported on by Ernst & Young LLP, copies of which have heretofore been furnished to each Lender, are complete and correct in all material respects and present fairly the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Company and its consolidated Subsidiaries as at June 30such dates, and the consolidated results of their operations and their consolidated cash flows for the fiscal years then ended. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at March 31, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity earnings and of cash flows for the three-month period ended on such date, certified by a Responsible Officer, copies of Lessee which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the three months three-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither Lessee the Company nor any of its consolidated Subsidiaries has (and will not following taken as a whole) had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent Obligationmaterial Guaranty, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. During the period from December 31, 1996 to and which in including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Company and its consolidated Subsidiaries of at December 31, 1996, other than any nature whatsoever (whether absolutesuch sale, accrued, contingent transfer or otherwise and whether or not due) which, either individually or other disposition that would have been permitted by this Agreement if this Agreement had been in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeeffect at all times during such period.

Appears in 1 contract

Samples: Revolving Credit Agreement (Federal Mogul Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) The consolidated balance sheet of the audited consolidated and consolidating balance sheets of Lessee Borrower and its consolidated Subsidiaries as at December 31, 1996, 2001 and the related consolidated and consolidating statements of incomeoperations, of cash flows and of changes in stockholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then endedended on such date, together with the related notes and schedules thereto, reported on by Ernst & Young LLP, and (ii) (A) the unaudited consolidated and consolidating balance sheets sheet of Lessee the Borrower and its consolidated Subsidiaries as at March 31, 2002, (B) from the Closing Date until such balance sheet is xxxxxxxxx xxxxxxxx to Section 7.1(b), the draft unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at June 30, 1997 2002, and (C) thereafter, the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at June 30, 2002, and in each case, together with the related unaudited consolidated and consolidating statements of incomeoperations, of cash flow, and of changes in stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the fiscal quarters then ended, in each case copies of which have heretofore been furnished to each Lender, present fairly in all material respects the consolidated financial condition of the Borrower and its consolidated Subsidiaries as at such dates, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended, subjectin conformity with GAAP. (b) All such financial statements referred to in subsection 5.1(a), including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case of any such unaudited financial statementsmay be, to changes resulting from audit and normal year-end adjustmentsas disclosed therein). Neither Lessee On the Closing Date, neither the Borrower nor any of its consolidated Subsidiaries has (and will not following have, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease lease, outstanding debt or Lien or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant referred to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not duein subsection 5.1(a) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected notes thereto to be material to Lessee and its Subsidiaries taken as a wholethe extent required by GAAP.

Appears in 1 contract

Samples: Credit Agreement (Meridian Resource Corp)

Financial Condition. (Aa) Lessee The Company has heretofore delivered furnished to Lessor, Agent and Lenders, each of the following financial statements and information: (i) the audited Banks consolidated and consolidating balance sheets of Lessee the Company and its Subsidiaries as at December 31, 1996, 1995 and the related consolidated and consolidating statements of income, stockholdersshareholders' equity and cash flows of Lessee the Company and its Subsidiaries for the fiscal year then endedended on said date, with the opinion thereon (iiin the case of said consolidated balance sheet and statements) of Ernst & Young L.L.P, and the unaudited consolidated and consolidating balance sheets of Lessee the Company and its Subsidiaries as at June 30March 31, 1997 1996 and the related unaudited consolidated and consolidating statements of income, stockholdersshareholders' equity and cash flows of Lessee the Company and its Credit Agreement ---------------- Subsidiaries for the three-month period ended on such date. All such financial statements present fairly, in all material respects, the consolidated financial condition of the Company and its Subsidiaries, and (in the case of said consolidating financial statements) the respective unconsolidated financial condition of the Company and of each of its Subsidiaries, as at said dates and the consolidated results of their operations, and (in the case of said consolidating statements) the respective unconsolidated results of operations of the Company and of each of its Subsidiaries, for the fiscal year and three-month period ended on said dates (subject, in the case of such financial statements as at March 31, 1996, to normal year-end audit adjustments), all in accordance with generally accepted accounting principles and practices applied on a consistent basis. None of the Company nor any of its Subsidiaries has on the date hereof any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said financial statements (or in the notes thereto) as at said dates. Since December 31, 1995, there has been no material adverse change in the consolidated financial condition, operations or business of the Company and its Subsidiaries taken as a whole from that set forth in said financial statements as at said date. (b) The Company has heretofore furnished to each of the Banks the annual and quarterly Statutory Statements of each of its Insurance Subsidiaries for the three months then endedfiscal year ended December 31, 1995 and for the quarterly fiscal period ended March 31, 1996 as filed with the Applicable Insurance Regulatory Authority. All such statements were prepared Statutory Statements present fairly, in conformity with GAAP and fairly present all material respects, the financial position (on a consolidated andcondition of each Insurance Subsidiary, where applicablerespectively, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the its results of operations through fiscal year ended on December 31, 1995 and cash flows (on a consolidated andthe quarterly fiscal period ended March 31, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject1996, in accordance with statutory accounting practices prescribed or permitted by the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its SubsidiariesApplicable Insurance Regulatory Authority. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit Agreement (Capital Re Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, The consolidated balance sheet of the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee ------------------- Company and its consolidated Subsidiaries as at December 31January 28, 1996, 1995 and the related consolidated and consolidating statements of income, stockholders' equity operations and retained earnings and of cash flows for the fiscal year ended on such date, reported on by Xxxxxx Xxxxxxxx LLP, copies of Lessee which have heretofore been furnished to each Bank, are complete and correct and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended, (ii) the . The unaudited consolidated and consolidating balance sheets sheet of Lessee the Company and its consolidated Subsidiaries as at June 30September 23, 1997 1995 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (retained earnings for the eight-month period ended on such date, certified by a Responsible Officer, copies of which have heretofore been furnished to each Bank, are complete and correct and present fairly the consolidated and, where applicable, consolidating basis) financial condition of the entities described therein Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations for each of the periods eight-month period then ended, subject, in the case of any such unaudited financial statements, ended (subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). (b) Except a set forth on Schedule II, neither the Company nor any of its consolidated Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to in subsection 4.1(a), any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements referred to in subsection 4.1(a) or in the notes thereto thereto. (c) Except as set forth on Schedule III, during the period from January 28, 1995 to and which in including the date hereof there has been no sale, transfer or other disposition by the Company or any such case is of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee Company and its consolidated Subsidiaries of any nature whatsoever (whether absoluteat January 28, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1995.

Appears in 1 contract

Samples: Credit Agreement (Dairy Mart Convenience Stores Inc)

Financial Condition. The Obligors have heretofore furnished to each of the Lenders the following: (Aa) Lessee has heretofore delivered to Lessor, Agent audited and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee the Trust and its Subsidiaries SLT as at December 31, 1996, 1996 and the related consolidated and consolidating statements of income, stockholders' equity retained earnings and cash flows flow of Lessee the Trust and its Subsidiaries SLT for the fiscal year then endedended on said date, with the opinion thereon (iiin the case of said consolidated balance sheet and statements) of a nationally recognized public accounting firm, (b) the unaudited consolidated and consolidating balance sheets of Lessee the Trust and its Subsidiaries SLT as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity retained earnings and cash flows flow of Lessee the Trust and its Subsidiaries SLT for the three months then endedsix-month period ended on such date; and (ii) an opening balance sheet of each Hotel Company giving effect to the Loans contemplated hereby, the Acquisition (and the transactions contemplated thereby, including the Acquisition Loans), respectively. All such financial statements were prepared delivered pursuant to clause (a) are complete and correct in conformity with GAAP all material respects and fairly present the consolidated financial position (on a consolidated and, where applicable, consolidating basis) condition of the entities described in such financial statements Trust and SLT, as at the respective said dates thereof and the consolidated results of their operations for the fiscal year and cash flows six-month period ended on said dates (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statementsstatements as at June 30, 1997, to changes resulting from audit and normal year-end audit adjustments), all in accordance with generally accepted accounting principles and practices applied on a consistent basis. Neither Lessee nor None of the Obligors has on the date hereof any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligationmaterial contingent liabilities, contingent liability or liability liabilities for taxes, long-term lease or unusual forward or long-term commitment that is not commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said balance sheets as at said dates. Since December 31, 1996, there has been no material adverse change in the foregoing consolidated financial statements or the notes thereto and which in any such case is material in relation to the businesscondition, operations, properties, assets, condition (financial or otherwise) business or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As whole of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever Trust and SLT from that is not fully disclosed set forth in the said financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeat said date.

Appears in 1 contract

Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)

Financial Condition. (A) Lessee The Borrower has heretofore delivered or made available to Lessor, Agent and the Lenders, at the following financial statements and information: (i) Lenders’ request, the audited consolidated balance sheets, statements of income and consolidating balance sheets cash flows of Lessee the Borrower and its Subsidiaries as at and for the Fiscal Year ended December 31, 19962009, and the related unaudited consolidated and consolidating balance sheets, statements of income, stockholders' equity income and cash flows of Lessee and its Subsidiaries for the fiscal year then ended, (ii) the unaudited consolidated and consolidating balance sheets of Lessee Borrower and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then endedFiscal Year ended December 31, 2010. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee the Borrower nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment not incurred in the ordinary course of business that (a) as of the Closing Date, is not reflected in the foregoing financial Borrower’s audited consolidated balance sheets, statements of income and cash flows of the Borrower and its Subsidiaries as at and for the Fiscal Year ended December 31, 2010 or the notes thereto and which thereto, or described in any such case is material in relation to the businessSchedule 6.1, operationsthat, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (b) as of any Funding Date subsequent to the Closing Date, is not reflected in the most recent audited financial statements delivered to the Lenders pursuant to subsection 5.1 or the notes thereto or permitted pursuant to subsection 6.1 and that, individually or in the aggregate, could reasonably be material expected to Lessee and its Subsidiaries taken as have a wholeMaterial Adverse Effect.

Appears in 1 contract

Samples: Credit Agreement (Jones Financial Companies LLLP)

Financial Condition. (Aa) Lessee has The Obligors have heretofore delivered to Lessorthe Agent, Agent the Board, the Loan Administrator, the Lenders and Lenders, the Participants the following financial statements and information: (i) the audited consolidated and consolidating balance sheets of Lessee and its Subsidiaries the Parent as at December 31, 19962001, and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries such Obligor for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee and its Subsidiaries each Obligor as at June September 30, 1997 2002 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries such Obligor for the three nine months then ended. All such consolidated statements and any other financial statements delivered pursuant to Section 3.1(a)(xx) were prepared in conformity with GAAP consistently applied and fairly present the consolidated financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements Obligor as at the respective dates thereof and the consolidated results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein such Obligor for each of the periods then ended, ended subject, in the case of any such the unaudited financial consolidated statements, to changes resulting from audit and normal year-end audit and adjustments. Neither Lessee Except as disclosed in writing to the Agent and the Board prior to the date of this Agreement, neither Obligor nor any of its their Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, material contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing consolidated financial statements or in the most recently delivered consolidated financial statements delivered pursuant to Section 5.1(i)(a) or (ii) or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, assets or condition (financial or otherwise) or of such Obligor or, with respect to the initial borrowing hereunder only, the prospects of Lessee or any of its Subsidiariessuch Obligor. (Bb) Except as fully disclosed Any projections and pro forma financial information contained in the Application and the projections and pro forma financial statements information delivered to the Lenders and the Board pursuant to Section 3.1(l) are based upon assumptions stated therein, which assumptions were believed by the Obligors to be reasonable at the time made (or as of the Closing Date in the case of the projections and pro forma financial information delivered pursuant to Section 5(c)(A3.1(l)), there were it being recognized by the Board and the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. (c) The Obligors and their Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the Initial Borrowing Date no liabilities or obligations recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to Lessee and its Subsidiaries of any nature whatsoever differences. (whether absoluted) After giving effect to the transactions contemplated by this Agreement, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As including the pledge of the Initial Borrowing DateCollateral under the Security Agreement, Lessee does the book value of the assets of the Parent not know subject to any Lien (as defined in the 9 5/8% Senior Notes Indenture, and subject to the exceptions contained in Section 10.05(a) of any basis for the assertion against it of any liability or obligation of any nature whatsoever that First Supplemental Indenture dated December 11, 1998 to such Indenture and the 10 1/2% Senior Notes Indenture and subject to the exceptions contained therein) is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeless than $125 million.

Appears in 1 contract

Samples: Loan Agreement (Ata Holdings Corp)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The unaudited consolidated and consolidating ------------------- balance sheets of Lessee and its Subsidiaries as the Borrower at December 31September 30, 1996, 1999 and the related consolidated and consolidating unaudited statements of income, stockholders' equity income and cash flows of Lessee and its Subsidiaries for the fiscal year then endednine month period ended September 30, 1999, certified by Responsible Officers of the Borrower copies of which have heretofore been furnished to each Lender, present fairly in all material respects and in accordance with GAAP (iiin all material respects) the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries as at June 30financial position, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (of the Borrower on a consolidated and, where applicable, consolidating basis) basis as of the entities described therein such dates and for each of the such periods then ended, subject, in the case of any such unaudited financial statements, (subject to changes resulting from audit and normal year-year end adjustments). Neither Lessee nor All such financial statements have been prepared in accordance with GAAP (except as approved by such Responsible Officer and disclosed therein). The Borrower did not have, at September 30, 1999 any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any material Contingent Obligation, contingent liability or liability for taxes, long-or any long- term lease or unusual forward or long-term commitment that commitment, including, without limitation, any material interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto and which in any such case is material in relation or expressly permitted to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiariesbe incurred hereunder. (Bb) Except The unaudited consolidated pro forma balance sheets of Holdings and the --- ----- Borrower and its consolidated Subsidiaries, as fully disclosed in of November 30, 1999, certified by Responsible Officers of Holdings and the financial statements delivered pursuant to Section 5(c)(ABorrower (the "Pro Forma Balance ----------------- Sheet"), there copies of which have been furnished to each Lender, are the unaudited ----- balance sheets of Holdings and the Borrower and its consolidated Subsidiaries adjusted to give effect (as if such events had occurred on the date set forth therein) to (i) the Acquisition, the other Transactions and each of the other transactions contemplated hereby and by the Asset Purchase Agreement and (ii) the incurrence of the Loans and the issuance of the Letters of Credit to be incurred or issued, as the case may be, on the Effective Date and all Indebtedness that Holdings and the Borrower and its consolidated Subsidiaries expect to incur, and the payment of all amounts Holdings and the Borrower and its consolidated Subsidiaries expect to pay, in connection with the Acquisition. The Pro Forma Balance Sheet, together with the notes thereto, were prepared based on good faith assumptions in accordance with GAAP and is based on the best information available to Holdings and the Borrower as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee date of delivery thereof and reflects in all material respects on a pro forma --- ----- basis the financial position of the Holdings and the Borrower and its consolidated Subsidiaries as of any nature whatsoever (whether absoluteNovember 30, accrued1999, contingent or otherwise and whether or not due) whichas adjusted, either individually or in aggregateas described above, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of assuming that the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed events specified in the financial statements delivered pursuant to Section 5(c)(A) whichpreceding sentence had actually occurred as of November 30, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1999.

Appears in 1 contract

Samples: Credit Agreement (Iwo Holdings Inc)

Financial Condition. (A) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the The audited consolidated and consolidating balance sheets financial statements of Lessee the Company and its Subsidiaries as at dated December 3128, 19962002, and the related consolidated and consolidating statements of incomeincome or operations, stockholdersshareholders' equity and cash flows of Lessee and its Subsidiaries for the fiscal year then ended: (1) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii2) fairly present the unaudited consolidated and consolidating balance sheets financial condition of Lessee the Company and its Subsidiaries as at June 30, 1997 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates date thereof and the results of their operations for the period covered thereby; and (3) except as specifically disclosed in Schedule 6.11, show all material indebtedness and cash flows (on a consolidated andother liabilities, where applicabledirect or contingent, consolidating basis) of the entities described therein for each Company and its consolidated Subsidiaries as of the periods then endeddate thereof, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any of its Subsidiaries has (and will not following the Initial Borrowing Date) have any Contingent Obligation, contingent liability or liability including liabilities for taxes, long-term lease material commitments and Contingent Obligations. (ii) Since December 28, 2002, there has been no material adverse change in, or unusual forward or long-term commitment that is not reflected in material adverse effect upon, the foregoing financial statements or the notes thereto and which in any such case is material in relation to the operations, business, operations, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee Company and its Subsidiaries taken as a whole. (i) The audited consolidated financial statements of NICC and its Subsidiaries dated September 29, 2002, and the related consolidated statements of income or operations, shareholders' equity and cash flows for the period then ended: (1) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (2) fairly present the financial condition of NICC and its Subsidiaries as of the date thereof and the results of their operations for the period covered thereby; and (3) except as specifically disclosed in Schedule 6.11, show all material indebtedness and other liabilities, direct or contingent, of NICC and its consolidated Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Contingent Obligations. (ii) Since September 29, 2002, there has been no material adverse change in, or material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of NICC and its Subsidiaries taken as a whole. (c) Since the Third Amendment Effective Date, no event has occurred which has had, or is reasonably likely to have, a Material Adverse Effect.

Appears in 1 contract

Samples: Credit Agreement (Dreyers Grand Ice Cream Holdings Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited consolidated and consolidating The balance sheets sheet of Lessee and its Subsidiaries Loral as at December 31, 19961996 and the related statements of income and of cash flows for the nine months ended on such date, audited by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Selling Bank and each Bank that requested the same, are complete and correct in all material respects and present fairly the financial condition of Loral as at such date, and the related consolidated results of its operations and consolidating statements of income, stockholders' equity and its cash flows of Lessee and its Subsidiaries for the fiscal year nine months then ended, (ii) . The unaudited balance sheet of the unaudited consolidated and consolidating balance sheets of Lessee and its Subsidiaries Borrower as at June 30, 1997 and the related unaudited consolidated and consolidating statements statement of income, stockholders' equity and cash flows of Lessee and its Subsidiaries income for the three months then ended. All month period ended on such statements were prepared date, certified by a Responsible Officer, copies of which have heretofore been furnished to the Selling Bank and each Bank that requested the same, are complete and correct in conformity with GAAP all material respects and present fairly present the financial position (on a consolidated and, where applicable, consolidating basis) condition of the entities described in such financial statements Borrower as at the respective dates thereof 45 40 such date, and the results of its operations and cash flows for the three month period then ended (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). Neither Lessee nor All such financial statements, including any related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein and, with respect to any unaudited statements, except the notes with respect thereto). Except as disclosed in Schedule 6.1, the Borrower did not have, at the date of its Subsidiaries has (and will not following the Initial Borrowing Date) have most recent balance sheet referred to above, any Contingent material Guarantee Obligation, material contingent liability or material liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or the notes thereto and which in any such case is notes thereto. During the period from June 30, 1997 to and including the date hereof there has been no sale, transfer or other disposition by the Borrower of any material part of its business or property and no purchase or other acquisition of any business or property (including any Capital Stock of any other Person) material in relation to the businessfinancial condition of the Borrower at June 30, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries1997. (Bb) Except The Borrower has furnished to the Selling Bank and each Bank projections of the financial position and results of operations of the Borrower as fully disclosed at the end of and for each of the fiscal years of the Borrower through December 31, 2002. The projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Borrower to be reasonable at the time made, it being recognized by the Administrative Agent, the Selling Bank and the Banks that such projections as to future events are inherently subject to significant economic and competitive uncertainties beyond the control of the Borrower, that actual results of operations during the periods covered by such projections may vary materially and adversely from the projected results of operations contained in such projections and that there cannot be any assurance that the projected results of operations contained in such projections will be realized. No fact is known to the Borrower (other than general economic conditions, which conditions are commonly known and affect business generally) which has, or which would in the future, in the reasonable judgment of the Borrower, have a Material Adverse Effect that has not been set forth in the financial statements delivered pursuant referred to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities in this subsection 6.1 or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually herein or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a wholeSchedules hereto.

Appears in 1 contract

Samples: Credit and Participation Agreement (Loral Space & Communications LTD)

Financial Condition. (A) Lessee Borrower has heretofore delivered to LessorLenders, Agent and at Lenders' request, the following financial statements and information: (i) the audited consolidated and consolidating balance sheets sheet of Lessee Holdings and its Subsidiaries as at December 31, 1996, 1999 and the related consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Holdings and its Subsidiaries for the fiscal year Fiscal Year then ended, ended and (ii) the unaudited consolidated and consolidating balance sheets sheet of Lessee Holdings and its Subsidiaries as at June 30March 31, 1997 2000 and the related unaudited consolidated and consolidating statements of income, stockholders' equity and cash flows of Lessee Holdings and its Subsidiaries for the three months then ended. All such statements were prepared in conformity with GAAP and fairly present present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Neither Lessee nor any Except as was permitted under the Prepetition Credit Agreement on the Petition Date, as of its Subsidiaries has the Closing Date, Borrower does not (and will not following the Initial Borrowing Datefunding of the initial Revolving Loans) have any Contingent Obligation, contingent liability or liability for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Lessee Borrower or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Prime Succession Inc)

Financial Condition. (Aa) Lessee has heretofore delivered to Lessor, Agent and Lenders, the following financial statements and information: (i) the audited The consolidated and consolidating balance sheets of Lessee HCNA and its Subsidiaries as at March 30, 1996 and the related consolidated statements of income and of cash flows for the fiscal year ended on such date, reported on by Coopers & Lybrand, copies of which have heretofore been furnished to each Lenxxx, xxe complete and correct in all material respects and present fairly, in all material respects, the consolidated financial condition of HCNA and its Subsidiaries as at such date, and the consolidated results of their operations and their cash flows for the fiscal year then ended. The unaudited consolidated balance sheets of HCNA and its Subsidiaries as at December 3128, 1996, 1996 and the related unaudited consolidated and consolidating statements of income, stockholders' equity income and of cash flows of Lessee and its Subsidiaries for the fiscal year then endednine-month period ended on such date, (ii) certified by a Responsible Officer of HCNA, copies of which have heretofore been furnished to each Lender, present fairly, in all material respects, the unaudited consolidated and consolidating balance sheets financial condition of Lessee HCNA and its Subsidiaries as at June 30such date, 1997 and the related unaudited consolidated results of their operations and consolidating statements of income, stockholders' equity and their cash flows of Lessee and its Subsidiaries for the three months nine-month period then ended. All such statements were prepared in conformity with GAAP and fairly present the financial position ended (on a consolidated and, where applicable, consolidating basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, subject to changes resulting from audit and normal year-end audit adjustments). (b) All such financial statements described in this subsection 7.1, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer of HCNA, and as disclosed therein). Neither Lessee HCNA nor any of its Subsidiaries has (and will not following had, at the Initial Borrowing Date) have date of the most recent balance sheet referred to above, any Contingent material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment that commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing financial statements or in the notes thereto thereto. Except for the Sale/Leaseback Transaction and which in the ECMC Transaction, during the period from March 30, 1996 to and including the Closing Date there has been no sale, transfer or other disposition by HCNA or any such case is of its Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the business, operations, properties, assets, consolidated financial condition (financial or otherwise) or prospects of Lessee or any of its Subsidiaries. (B) Except as fully disclosed in the financial statements delivered pursuant to Section 5(c)(A), there were as of the Initial Borrowing Date no liabilities or obligations with respect to Lessee HCNA and its Subsidiaries of any nature whatsoever (whether absoluteat March 30, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, Lessee does not know of any basis for the assertion against it of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 5(c)(A) which, either individually or in the aggregate, could reasonably be expected to be material to Lessee and its Subsidiaries taken as a whole1996.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Harris Chemical North America Inc)

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