Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material). (b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change. (c) On and as of the Closing Date, after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.
Appears in 2 contracts
Samples: First Lien Senior Credit Agreement (Wellman Inc), Second Lien Senior Credit Agreement (Wellman Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Borrower as at June 30, 1996, June 30, 1997, June 30, 1998, December 31, 1998 and March 31, 1999 and the related statements of earnings and cash flows of the Borrower and its Subsidiaries for the fiscal periods ended as of December 31such dates, 2003 in the case of the annual statements, have been examined by PricewaterhouseCoopers LLP, independent certified public accountants, who delivered unqualified opinions in respect thereto and (ii) the pro forma (after giving effect to the Transactions Transaction and the incurrence related financing thereof) consolidated balance sheet of the Borrower as at the Restatement Effective Date, copies of all Indebtedness contemplated thereby as set forth on Schedule 4.12 of which financial statements referred to in the preceding clauses (the "PRO FORMA BALANCE SHEET")i) and (ii) have heretofore been furnished to each Bank, in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries respective entities at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods period covered thereby (or, in the case of the Pro Forma Balance Sheetpro forma balance sheet, presents present a good faith estimate of the consolidated pro forma financial condition of the Company Borrower and its Subsidiaries (after giving effect to the Transactions Transaction) on a consolidated basis at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements and with respect to interim financial statements, for the omission of footnotessubject to normal year end adjustments. Since December 31, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Credit Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection with the Transaction, and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets (including all intangible assets), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Credit Party will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.have
Appears in 2 contracts
Samples: Credit Agreement (Reckson Services Industries Inc), Credit Agreement (Vantas Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the U.S. Borrower and its Subsidiaries for the fiscal year ended December 31, 2006 and the fiscal quarter ended March 23, 2007, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company U.S. Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied. Except as, consistently applied (other than as set forth therein)and to the extent, except, disclosed in the case U.S. Borrower’s Form 10-K for the fiscal year ended December 31, 2006, since December 31, 2006, nothing has occurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the legality, validity or enforceability of the quarterly statementsCredit Documents taken as a whole, for (ii) the omission ability of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallythe U.S. Borrower to repay the Obligations, or in (iii) the aggregate, would be material)rights and remedies of the Lenders or the Agents under the Credit Documents.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing DateEffective Date and on the date on which each Revolving Loan is made or each Letter of Credit is issued, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Revolving Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company U.S. Borrower and its Subsidiaries (taken as a whole whole) and the Company U.S. Borrower (on a stand-alone basis) will exceed their respective debts, (y) the U.S. Borrower and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the U.S. Borrower (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will the U.S. Borrower and its Subsidiaries (taken as a whole) and the U.S. Borrower (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "8.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the U.S. Borrower in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts, Inc.)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet sheets of the Company U.S. Borrower and its Subsidiaries as of for the fiscal year ended December 31, 2003 and after giving effect the fiscal quarter ended June 18, 2004, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Transactions and Lenders on or prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Effective Date, in each case present fairly in all material respects the consolidated financial condition position of the Company U.S. Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied. Except as, consistently applied (other than as set forth therein)and to the extent, except, disclosed in the case U.S. Borrower’s Form 10-K for the fiscal year ended December 31, 2003, since December 31, 2003, nothing has occurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the legality, validity or enforceability of the quarterly statementsCredit Documents taken as a whole, for (ii) the omission ability of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallythe U.S. Borrower to repay the Obligations, or in (iii) the aggregate, would be material)rights and remedies of the Lenders or the Agents under the Credit Documents.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing DateEffective Date and on the date on which each Revolving Loan is made or each Letter of Credit is issued, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Revolving Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company U.S. Borrower and its Subsidiaries (taken as a whole whole) and the Company U.S. Borrower (on a stand-alone basis) will exceed their respective debts, (y) the U.S. Borrower and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the U.S. Borrower (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will the U.S. Borrower and its Subsidiaries (taken as a whole) and the U.S. Borrower (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "8.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the U.S. Borrower in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 2 contracts
Samples: Credit Agreement (Host Marriott Corp/), Credit Agreement (Host Marriott L P)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) The (x) unaudited pro forma consolidated and combined carve-out balance sheet of SDLP and (y) unaudited pro forma combined balance sheet of the Borrowers and the Guarantors, in each case as of March 31, 2014 (including the notes thereto) (collectively, the “Pro Forma Balance Sheets”), a copy of which have heretofore been furnished to each Lender pursuant to Section 5.01(j), have been prepared giving effect (as if such events had occurred on such date) to (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date2014 Restatement Refinancing, (ii) the Unaudited Financial Statements furnished Loans to be made on the Lenders prior to Restatement Effective Date and the Closing Date use of proceeds thereof and (iii) the unaudited payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheets have been prepared based on the best information available to the Borrowers as of the date of delivery thereof, and present fairly, on a pro forma consolidated balance sheet basis, the estimated financial position of the Company SDLP and its Subsidiaries as of December 31consolidated Subsidiaries, 2003 and after giving effect to on the Transactions one hand, and the incurrence of all Indebtedness contemplated thereby as set forth Borrowers and the Guarantors, on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")other hand, in each case present fairly in all material respects as of March 31, 2014, assuming that the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, events specified in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions preceding sentence had actually occurred at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)date.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change[Reserved].
(c) On and as of the Closing Restatement Effective Date, and after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and the Liens created by each party the Loan Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each the Loan Parties on a consolidated basis exceed the sum of the Company stated liabilities and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each identified contingent liabilities, of the foregoing, Loan Parties on a "SOLVENT ENTITY") will exceed its debtsconsolidated basis; (yii) each Solvent Entity has the Loan Parties on a consolidated basis have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts debt as such debts maturemature (taking into account potential future incurrences of Indebtedness, refinancings of existing Indebtedness, equity issuances and dispositions of assets); and (ziii) each Solvent Entity the Loan Parties on a consolidated basis will not have sufficient unreasonably small capital with which to conduct its business. For purposes the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Restatement Effective Date; and (iv) the Loan Parties, taken as a whole, are not otherwise insolvent under the standards set forth in applicable law.
(d) Except as disclosed in the financial report most recently delivered pursuant to Section 7.05 of this Section 4.5(c)the Original Credit Agreement, "debt" means there were as of the Restatement Effective Date no liabilities or obligations with respect to the Loan Parties of any liability on a claimnature whatsoever (whether absolute, accrued, contingent or otherwise and "claim" means (i) right to payment, whether or not such due) which, either individually or in the aggregate, could reasonably be expected to be material to the Loan Parties taken as a right whole. As of the Restatement Effective Date, no Borrower knows of any reasonable basis for the assertion against it or any Guarantor of any liability or obligation of any nature whatsoever that is reduced not fully disclosed in the financial report most recently delivered pursuant to judgmentSection 7.05 of the Original Credit Agreement which, liquidatedeither individually or in the aggregate, unliquidatedcould reasonably be expected to be material to the Loan Parties taken as a whole.
(e) On and as of the Restatement Effective Date, fixedthe Projections which have been delivered to the Lenders prior to the Restatement Effective Date have been prepared in good faith and are based on assumptions believed by the Borrowers to be reasonable; it being recognized by the Lenders, contingenthowever, maturedthat projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by the Projections may differ from the projected results.
(f) Since December 31, unmatured2013, legalthere has been no change in the operations, equitablebusiness, securedproperties, or unsecured financial condition of the Loan Parties taken as a whole that, individually or (ii) right in the aggregate, has had, or could reasonably be expected to an equitable remedy for breach of performance if such breach gives rise to have, a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecuredMaterial Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Seadrill Partners LLC), Credit Agreement
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma audited consolidated balance sheet of (x) the Company and its Subsidiaries for the fiscal year of the Company ended November 30, 2009 and the related consolidated statements of income, cash flows and shareholders’ equity of the Company and its Subsidiaries as for such fiscal year, and (y) the Acquired Business and its Subsidiaries for the fiscal year of the Acquired Business ended December 31, 2003 and after giving effect to the Transactions 2009 and the incurrence related consolidated statements of all Indebtedness contemplated thereby as set forth on Schedule 4.12 income, cash flows and shareholders’ equity of the Acquired Business and its Subsidiaries for such fiscal year, and (ii) the "PRO FORMA BALANCE SHEET")unaudited consolidated balance sheet of (x) the Company and its Subsidiaries for the three fiscal quarters of the Company ended August 31, 2010 and the related consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal quarters and (y) the Acquired Business and its Subsidiaries for the eight months of the Acquired Business ended August 31, 2010 and the related consolidated statements of income and cash flows of the Acquired Business and its Subsidiaries for such fiscal period, copies of which in each case have been furnished to the Administrative Agent and each Lender prior to the Restatement Effective Date, present fairly in all material respects the consolidated financial condition of the Company and its Subsidiaries or the Acquired Business and its Subsidiaries, as the case may be, at the date dates of such said financial statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof))thereby, subject, in the case of Unaudited Financial Statementsthe unaudited financial statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and to all Indebtedness being incurred, and to be incurred or assumed (including, without limitation, the Loans and the additional ABL Loans, if any) and Liens created, and to be created, by each Credit Party in connection therewith, with respect to each of (i) the Company and Liens created by each party in connection therewithits Subsidiaries (on a consolidated basis) and (ii) the Acquired Business and its Subsidiaries (on a consolidated basis), (x) the sum of the assets, at a fair valuationFair Value, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "debt" means any liability on a claim, and "claim" means (iconsolidated basis) 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.or
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Omnova Solutions Inc), Term Loan Credit Agreement (Omnova Solutions Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished audited annual and unaudited interim financial statements (as to the Lenders prior Borrower and as to its Subsidiaries on a combined basis) delivered to the Closing Date, (iiBanks pursuant to Section 5.14(i) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date or Sections 8.01(b) and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"c), in each case as applicable, present fairly in all material respects the financial condition of the Company and its Subsidiaries relevant Persons at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsthereby. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than and the financial statements as set forth therein), except, in the case of the quarterly statements, and for the omission fiscal years have been audited by and accompanied by the opinion of footnotesErnst & Young LLP, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallyindependent public accountants, or in such other independent certified public accountants of recognized national standing reasonably acceptable to the aggregate, would be material)Agents.
(b) After Since September 30, 2001, after giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there nothing has been no occurred that has had or could reasonably be expected to have a Material Adverse ChangeEffect.
(c) On and as of the Closing Effective Date, after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Borrower in connection therewiththerewith (assuming the full utilization of all Commitments on the Effective Date), (xa) the sum of the assets, at a fair valuationgoing business value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that would be obtained for such assets within such period by a capable and diligent businessman from an interested buyer who is willing to purchase under ordinary selling conditions), of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Borrower will exceed its debts; (yb) each Solvent Entity the Borrower has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity the Borrower will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(c), "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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured; provided that to the extent any such "claim" is not fixed, liquidated and contingent, the amount thereof shall equal the Borrower's good faith estimate of the maximum amount thereof.
Appears in 2 contracts
Samples: Credit Agreement (Appliance Warehouse of America Inc), Credit Agreement (Coinmach Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) The (i) The Audited Financial Statements audited consolidated balance sheets of the Canadian Parent and its Subsidiaries for the fiscal years ended on December 31, 2000, December 31, 2001 and December 31, 2002, and the related consolidated statements of income, shareholders' equity and cash flows of the Canadian Parent and its Subsidiaries for the fiscal years ended on such dates, and furnished to the Lenders prior to the Closing Escrow Deposit Date, (ii) audited consolidated balance sheets of Wallace and its Subsidiaries for the Unaudited Financial Statements furnished fiscal years -55- ended on July 31, 2000, July 31, 2001 and July 31, 2002, and the related consolidated statements of earnings, shareholder's equity and cash flows of Wallace and its Subsidiaries for the fiscal year ended on such date, xxx xxrnished to the Lenders prior to the Closing Date Escrow Deposit Date, and (iii) the unaudited pro forma consolidated balance sheet sheets of Wallace and its, Subsidiaries for the Company fiscal quarters ended on Octobxx 00, 2002 and, if this representation is being made on or after the Escrow Release Date, January 31, 2003, and the related consolidated statements of income, shareholders' equity and cash flows of Wallace and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth for such fiscal quarters ended on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")such xxxxx, in each case present fairly in all material respects the financial condition of the Company Canadian Parent and its Subsidiaries or Wallace and its Subsidiaries, as the case may be, at the date of such statements sucx xxxxxments of financial condition and the results of the operations of the Company Canadian Parent and its Subsidiaries or Wallace and its Subsidiaries, as the case may be, for the periods covered thereby (orrespective xxxxxx year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such interim monthly or quarterly financial statements (other than furnished to the aforesaid Pro Forma Balance Sheet) Agents and the Lenders prior to the Escrow Deposit Date or the Escrow Release Date, as the case may be, present fairly in all material respects in accordance with GAAP the consolidated results of the operations of the Canadian Parent and its Subsidiaries and Wallace and its Subsidiaries, respectively, for the periods covered xxxxxxx. All of the foregoing historical financial statements have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly and monthly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) The Pro Forma Financials, copies of which have been furnished to the Lenders prior to the Escrow Deposit Date, present in all material respects the pro forma consolidated financial position and results of operations of the Canadian Parent and its Subsidiaries (after giving effect to the Transaction) as at the dates and for the periods covered thereby and have been prepared in accordance with the requirements of Regulation S-X under the Securities Act for registration statements (as if such a registration statement for a debt issuance of the Borrower, guaranteed by the Canadian Parent became effective on the Escrow Release Date) on Form S-1.
(c) After giving effect to the TransactionsTransaction (but for this purpose assuming that the Transaction and the related financing had occurred prior December 31, 2002), since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2002, there has been no effect, change or development that, individually or in the aggregate with such other effects, changes or developments is, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(cd) On and as of the Closing Escrow Release Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans and the Senior Unsecured Notes) that has been or is being incurred incurred, issued or assumed in connection therewithon or prior to such date, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each the Borrower, individually, of the Company Canadian Parent, individually, of the Borrower and its Subsidiaries taken as Subsidiaries, on a whole consolidated basis, and of the Company Canadian Parent and the Subsidiary Guarantors taken as its Subsidiaries, on a whole consolidated basis (each of the foregoing, a "SOLVENT ENTITYSolvent Entity") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.will
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated statements of financial condition of the Borrower and its Subsidiaries at December 31, 1996 and the related consolidated statements of income and cash flow and changes in shareholders' equity of the Borrower and its Subsidiaries for the fiscal year ended on such date, and furnished to the Lenders Banks prior to the Closing Initial Borrowing Date, and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Borrower and its Subsidiaries as of December the end of the fiscal quarter of the Borrower ended March 31, 2003 1997, and after giving effect the related consolidated statements of earnings, shareholder's equity and cash flows of the Borrower and its Subsidiaries for such quarterly periods, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Initial Borrowing Date, in each case case, present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (orrespective fiscal year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly and monthly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction, since September 30March 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1997, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(c) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company Borrower, individually, and the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, as to itself or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its or their debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(c), "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.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Borrower and its Subsidiaries as at September 30, 1998 and June 30, 1999 and the related consolidated statements of December 31operations, 2003 cash flows and after giving effect shareholders' equity of the Borrower and its Subsidiaries for the fiscal year or nine-month period ended on such dates, respectively, copies of which have been furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Effective Date, in each case present fairly in all material respects the financial condition position of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, thereby. Except as previously disclosed in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect writing to the Transactions at agents under the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsExisting Credit Agreement, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Effective Date, on a pro forma basis, after giving effect to the Transactions execution, delivery and performance of this Agreement and the other Credit Documents, and the consummation of the transactions contemplated herein and therein and to all Indebtedness being incurred or assumed in connection therewithand to be incurred, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c6.05(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, disputed, undisputed, 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished consolidated and consolidating statements of financial condition of INTERCO and its Subsidiaries at December 31, 1994 and the related consolidated and consolidating statements of income and cash flow and changes in shareholders' equity of INTERCO and its Subsidiaries for the Fiscal Year ended on such date, and furn- ished to the Lenders Banks prior to the Closing Date, Restatement Effective Date and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated and (iii) the unaudited pro forma consolidated balance sheet consolidating statements of the Company financial condition of INTERCO and its Subsidiaries as of the end of each fiscal quarter of INTERCO ended after December 31, 2003 1994, and after giving effect the related consolidated and consolidating statements of income and cash flow of INTERCO and its Subsidiaries for such quarterly periods, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Restatement Effective Date, in each case case, present fairly in all material respects the financial condition condi- tion of the Company INTERCO and its Subsidiaries (or INTERCO and its Restricted Subsidiaries, as the case may be) at the date of such statements of financial condition and the results of the operations of the Company INTERCO and its Subsidiaries (or INTERCO and its Restricted Subsidiaries as the case may be) for the periods covered thereby (orrespective Fiscal Year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments adjust- ments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect Each of (i) (x) the audited statements of income and cash flow of Thomasville and its Subsidiaries for the years ended December 31, 1992, December 31, 1993 and December 31, 1994, and (y) the audited consolidated balance sheet of Thomasville and its Subsidiaries as of December 31, 1993, and December 31, 1994, together with the notes thereto and the reports thereon of KMPG Peat Marwick, and (ii) the unaudited consolidated balance sheet of Thomasville and its Subsidiaries as of October 31, 1995 and the related statement of income and cash flow for the ten-month period then ended (including in all cases the notes thereto, if any), fairly presents the financial position of and the results of operations for the entities reported on and is consistent with the books and records of Thomasville and its Subsidiaries and has been prepared in accordance with generally accepted accounting principles, consistently applied, subject in the case of the financial statements referred to in (ii) above to changes resulting from normal year-end adjustments. The books and records upon which the foregoing financial statements are based are true and complete, to the Transactionsbest knowledge of the Borrowers.
(c) Since December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1994, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrowers taken as a whole or of the Borrowers and their Restricted Subsidiaries taken as a whole, it being understood that any determination of whether such material adverse change has occurred shall take into account, inter alia, (x) any available indemnities and (y) the timing and likelihood of payment thereunder.
(ci) On and as of the Closing Restatement Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewiththerewith (assuming the full utilization of all Commitments on the Restatement Effective Date), (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower, individually, each Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole Subsidiaries, (each of the foregoing, as to itself or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its or their debts; (yb) each Solvent Entity has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity will have sufficient capital with which to conduct its businessbusinesses. For purposes of this Section 4.5(c7.05(d), "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, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Interco Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended January 3, 2004, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended on such date, copies of which have been furnished to the Lenders prior to the Closing Date, Restatement Effective Date and (ii) the Unaudited Financial Statements unaudited consolidated balance sheets of the Borrower and its Subsidiaries for the fiscal quarters of the Borrower ended on April 24, 2004 and July 17, 2004, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarters of the Borrower ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Restatement Effective Date, in each case case, present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned unaudited financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction (but for this purpose assuming that the Transaction and the related financing had occurred prior to January 3, 2004), since September 30January 3, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2004, there has been no condition or circumstance that, individually or in the aggregate with such other conditions or circumstances, has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by this Agreement and the other Credit Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, with respect to each of the Borrower and Liens created by each party in connection therewiththe Borrower and its Subsidiaries taken as a whole, (x) the sum of the assetsits or their assets (including goodwill), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity has it or they have not incurred and does do not intend to incur, nor believes believe that it or they will incur, debts beyond its or their ability to pay such debts as such debts mature; and (z) each Solvent Entity it or they will have sufficient capital with which to conduct its or their business. For purposes of this Section 4.5(c7.05(c), "debt" means any liability on a claim, claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2021 and the fiscal quarter ended September 30, 2022, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Date, (iii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby and (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetii) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), exceptsubject, in the case of the quarterly statementsfinancial statements not relating to a full fiscal year, to normal year-end audit adjustments and the absence of footnotes). Except as, and to the extent, disclosed in the Company’s Form 10-K for the omission of footnotesfiscal year ended December 31, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually2021, since December 31, 2021, nothing has occurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the aggregatelegality, would be material)validity or enforceability of the Loan Documents taken as a whole, (ii) the ability of the Company and the Designated Borrowers, taken as a whole, to repay the Obligations, or (iii) the rights and remedies of the Lenders or the Agents under the Loan Documents.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Revolving Loans, the Term A-1 Loans, the Term A-2 Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithon the Closing Date, (xi) the sum of the assets, at a fair valuationvaluation on a going concern basis, of each of the Company and its Subsidiaries (taken as a whole and whole) will exceed their respective debts, (ii) the Company and the Subsidiary Guarantors its Subsidiaries (taken as a whole (each of the foregoing, a "SOLVENT ENTITY"whole) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature in the ordinary course of business and (ziii) each Solvent Entity will the Company and its Subsidiaries (taken as a whole) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "5.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the Company in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2014 and the fiscal quarter ended June 30, 2015, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Date, (iii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby and (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetii) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), exceptsubject, in the case of the quarterly statementsfinancial statements not relating to a full fiscal year, for to normal year-end audit adjustments and the omission absence of footnotes). Except as, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactionsextent, since September 30, 2003 (as disclosed in the Company's Quarterly Report on ’s Form 10-Q K for such quarter)the fiscal year ended December 31, there 2014, since December 31, 2014, nothing has been no Material Adverse Changeoccurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the legality, validity or enforceability of the Loan Documents taken as a whole, (ii) the ability of the Company and the Designated Borrowers, taken as a whole, to repay the Obligations, or (iii) the rights and remedies of the Lenders or the Agents under the Loan Documents.
(cb) On and as of the Closing DateDate and on the date on which each Loan is made or each Letter of Credit is issued, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Committed Loans, the Term Loans, the 2015 Term Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries (taken as a whole whole) and the Company (on a stand-alone basis) will exceed their respective debts, (y) the Company and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the Company (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will the Company and its Subsidiaries (taken as a whole) and the Company (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "5.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the Company in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements audited consolidated balance sheets of Gener and its Subsidiaries for the Applicable Fiscal Years and the related statements of income, cash flows and shareholders' equity of Gener and its Subsidiaries, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, (i) have been audited by Xxxxxx Xxxxxxxx, (ii) have been prepared in accordance with Chilean GAAP consistently applied throughout the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date periods covered thereby, and (iii) (on the unaudited pro forma consolidated balance sheet basis disclosed in the footnotes to such financial statements) present fairly, in all material respects, the combined financial condition, results of the Company operations and cash flows of Gener and its Subsidiaries as of December 31for financial condition, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations and cash flows of the Company Gener and its Subsidiaries for the periods covered thereby (or, in the case thereby. The unaudited interim consolidated balance sheets of the Pro Forma Balance SheetGener and its Subsidiaries as at the end of, presents a good faith estimate and the related unaudited interim combined statements of income and of cash flows for, the nine-month period ended September 30, 2000 have heretofore been furnished to each Lender. During the period from September 30, 2000 to and including the Effective Date, there has been no sale, transfer or other disposition by Gener and its Subsidiaries of any material part of the consolidated pro forma business or property of the Gener and its Subsidiaries and no purchase or other acquisition by Gener or its Subsidiaries of any business or property (including any capital stock of any other Person) material in relation to the combined financial condition of the Company (after giving effect to the Transactions at the date thereof)), subjectGener and its Subsidiaries, in each case, which is not reflected in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the Effective Date.
(b) After giving effect The pro forma balance sheet and statements of income and of cash flows of the Borrower and the other Credit Parties (the "Pro Forma Financial Statements"), copies of which have heretofore been furnished to each Lender, are the Transactions, since balance sheet and statements of income and of cash flows of the Borrower and the other Credit Parties for the twelve-month period ended September 30, 2003 2000 (the "Pro Forma Date"), adjusted to give effect (as disclosed if such events had occurred on such date) to (i) the consummation of the Gener Acquisition and the Cayman Acquisition, (ii) the making of the Loans to be made on the Initial Borrowing Date in an aggregate principal amount of not more than U.S.$400,000,000, (iii) the Company's Quarterly Report refinancing of certain existing Indebtedness of the Borrower incurred in connection with the Gener Acquisition, and (iv) the payment of estimated fees, expenses, financing costs and settlement of intercompany accounts related to the transactions contemplated hereby and thereby. The Pro Forma Financial Statements were prepared in good faith on Form 10-Q for such quarter), there has been no Material Adverse Changethe basis of reasonable estimates.
(c) Since September 30, 2000, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
(d) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions transactions contemplated hereby and to all Indebtedness the Bridge Loans being incurred or assumed in connection therewith, and Liens created by each party in connection therewiththe Credit Parties, (xi) the sum of the tangible and intangible assets, at a fair valuation, of each the Borrower on a stand-alone basis and of the Company Borrower and its Subsidiaries taken as a whole will exceed their debts; (ii) the Borrower on a stand-alone basis and the Company Borrower and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.
Appears in 1 contract
Samples: Senior Secured Bridge Credit Agreement (Aes Corporation)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of ATC for the fiscal year and nine month period ended on February 28, 1997 and November 30, 1997, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of ATC for the fiscal year or nine month period, as the case may be, ended on such dates, copies of which have been furnished to the Lenders Banks prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries ATC at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries ATC for the periods covered thereby (orthereby. The consolidated balance sheet of each of Bing Yen and EWI for the fiscal years ended on December 31, 1996 and June 30, 1997, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of each of Bing Yen and EWI for the respective fiscal years ended on such dates, copies of which have been furnished to the Banks prior to the Initial Borrowing Date, present fairly in all material respects the case consolidated financial position of each of Bing Yen and EWI at the dates of such balance sheets and the consolidated results of operations of each of Bing Yen and EWI for the periods covered thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied. The pro forma consolidated financial statements of Holdings and its Subsidiaries as of November 30, consistently applied (other than as set forth therein), except1997, in each case after giving effect to the Transaction and the financing therefor, copies of which have been furnished to the Banks prior to the Initial Borrowing Date, present fairly in all material respects the pro forma consolidated financial position of Holdings and its Subsidiaries as of November 30, 1997 and the pro forma consolidated results of operations of Holdings and its Subsidiaries for the twelve month and nine month periods covered thereby, as the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) may be. After giving effect to the TransactionsTransaction (but for this purpose assuming that the Transaction, the Bing Yen Acquisition, the EWI Acquisition and the related financing had occurred prior to February 28, 1997), since September 30February 28, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1997, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, therewith (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and of Holdings and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand-alone basis and Holdings and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.does
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated and consolidating statements of financial condition of Furniture Brands and its Subsidiaries at December 31, 1996 and the related consolidated and consolidating statements of income and consolidated statements of cash flow and changes in shareholders' equity of Furniture Brands and its Subsidiaries for the Fiscal Year ended on such date, and furnished to the Lenders Banks prior to the Closing Date, Third Restatement Effective Date and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated and (iii) the unaudited pro forma consolidated balance sheet consolidating statements of the Company financial condition of Furniture Brands and its Subsidiaries as of the end of each fiscal quarter of Furniture Brands ended after December 31, 2003 1996, and after giving effect the related consolidated and consolidating statements of income and consolidated statements of cash flow of Furniture Brands and its Subsidiaries for such quarterly periods, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Third Restatement Effective Date, in each case case, present fairly in all material respects the financial condition of the Company Furniture Brands and its Subsidiaries Subsi- diaries (or Furniture Brands and its Restricted Subsidiaries, as the case may be) at the date of such statements of financial condition and the results of the operations of the Company Furniture Brands and its Subsidiaries (or Furniture Brands and its Restricted Subsidiaries as the case may be) for the periods covered thereby (orrespective Fiscal Year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared pre- pared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsSince December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1996, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabil- ities, condition (financial or otherwise) or prospects of the Borrowers taken as a whole or of the Borrowers and their Restricted Subsidiaries taken as a whole, it being understood that any determination of whether such material adverse change has occurred shall take into account, inter alia, (x) any available indemnities and (y) the timing and likelihood of payment thereunder.
(ci) On and as of the Closing Third Restatement Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created (or maintained) by each party the Credit Parties in connection therewiththerewith (assuming the full utilization of all Revolving Loan Commitments on the Third Restatement Effective Date), (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower, individually, each Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole Subsidiaries, (each of the foregoing, as to itself or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its or their debts; (yb) each Solvent Entity has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity will have sufficient capital with which to conduct its businessbusinesses. For purposes of this Section 4.5(c7.05(c), "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, contingentcontin- gent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether whe- ther or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Parent and its Subsidiaries for the Parent’s fiscal year ended on September 30, 2007, and the consolidated balance sheet of the Parent and its Subsidiaries for the Parent’s fiscal quarter ended on June 30, 2008 and (in each case) the related consolidated statements of income, cash flows and shareholders’ equity of the Parent and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Parent and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Parent and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Initial Borrowing Date, and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each of the Company Parent and the Borrower, on an individual basis, of the Parent and its Subsidiaries Subsidiaries, taken as a whole whole, and of the Company Borrower and the Subsidiary Guarantors its Subsidiaries, taken as a whole whole, will exceed their respective debts, (ii) each of the foregoingParent and the Borrower, on an individual basis, the Parent and its Subsidiaries, taken as a "SOLVENT ENTITY") will exceed whole, and the Borrower and its debts; (y) each Solvent Entity has Subsidiaries, taken as a whole, have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their respective ability to pay such debts as such debts mature; , and (ziii) each Solvent Entity of the Parent and the Borrower, on an individual basis, the Parent and its Subsidiaries, taken as a whole, and the Borrower and its Subsidiaries, taken as a whole, will have sufficient capital with which to conduct its businesstheir respective businesses. For purposes of this Section 4.5(c7.05(b), "“debt" ” means any liability on a claim, and "“claim" ” means (ix) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (iiy) 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated financial statements and (iii) the unaudited pro forma consolidated balance sheet financial statement schedules of the Company Corporation and its Subsidiaries Subsidiaries, as of December 31, 2003 2009, 2010 and after giving effect to 2011, 2012 and 2013, filed with the Transactions and SEC as part of the incurrence of all Indebtedness contemplated thereby as set forth Corporation’s annual report on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Form 10-K, in each case fairly present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the consolidated results of the operations of the Company Corporation and its Subsidiaries for the periods covered thereby (orrespective Fiscal Years ended on such dates, in and the case consolidated financial position of the Pro Forma Balance Sheet, presents a good faith estimate Corporation and its Subsidiaries as at such dates. The consolidated financial statements and financial statement schedules of the consolidated pro forma financial condition Corporation and its Subsidiaries, as of SeptemberJune 30, 20122014, filed with the SEC as part of the Company (after giving effect to Corporation’s quarterly report on Form 10-Q, fairly present in all material respects the Transactions consolidated results of operations of the Corporation and its Subsidiaries for the fiscal quarter ended on such date, and the consolidated financial position of the Corporation and its Subsidiaries as at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentssuch date. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied, consistently applied (other than except as expressly set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)notes thereto.
(b) After giving effect Since December 31, 20112013 to and including the TransactionsFourth Amendment Effective Date (but, since September 30for this purpose, 2003 (as disclosed in assuming that the Company's Quarterly Report Transaction had been consummated on Form 10-Q for such quarterdate), there nothing has been no occurred that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Fourth Amendment Effective Date, after giving effect the Projections are based on good faith estimates and assumptions believed to be reasonable at the Transactions and time made; provided, however, that the Corporation makes no representation or warranty that such assumptions will prove in the future to all Indebtedness being incurred be accurate or assumed in connection therewith, and Liens created by each party in connection therewith, (x) that the sum of the assets, at a fair valuation, of each of the Company Corporation and its Subsidiaries taken will achieve the financial results reflected in the Projections (it being understood that such Projections are not to be viewed as a whole facts and are subject to significant uncertainties and contingencies, many of which are beyond the Company Corporation’s control, that no assurance can be given that any particular Projections will be realized and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred that actual results may differ and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(cdifferences may be material), "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.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) The consolidated balance sheets of (i) The Audited Financial Statements Chancellor Media Corporation of Los Angeles and its Subsidiaries and Capstar Broadcasting Corporation for the fiscal year ended December 31, 1998 and (ii) AMFM, Chancellor Media Corporation of Los Angeles, CRBP, CCI and their respective Subsidiaries for the three-month period ended on September 30, 1999, and the related statements of income, cash flows and shareholders' equity of each such Person and its Subsidiaries for such fiscal year or three month period ended as of said dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case fairly present fairly in all material respects the financial condition of the Company each such Person and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company each such Person and its Subsidiaries for such fiscal year and three-month period, as the periods covered thereby (orcase may be. All of the foregoing financial statements are true and correct in all material respects and have been prepared in accordance with GAAP consistently applied except to the extent provided in the notes to said financial statements and subject, in the case of the Pro Forma Balance SheetSeptember 30, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements1999 statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or of Parent and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Initial Borrowing Date, on a pro forma basis after giving effect to the Transactions Transaction and all Indebtedness incurred, and to all Indebtedness being incurred or assumed in connection therewithbe incurred, and Liens created created, and to be created, by each party Parent and its Subsidiaries in connection therewith, with the transactions contemplated herein (xa) the sum of the assets, at a fair valuation, of each of the Company Parent and its Subsidiaries taken as a whole whole, Holdings and the Company and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of whole, and the foregoingBorrower and its Subsidiaries taken as a whole, a "SOLVENT ENTITY") will exceed its their debts; (yb) each Solvent Entity of Parent and its Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken as a whole, has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (zc) each Solvent Entity of Parent and its Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken as a whole, will have sufficient capital with which to conduct its business. For purposes of this their businesses.
(c) Except as fully disclosed in the financial statements delivered pursuant to Section 4.5(c7.05(a), "debt" means there were as of the Initial Borrowing Date no liabilities with respect to Parent or any liability on a claimof its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and "claim" means (i) right to payment, whether or not due) which, either individually or in aggregate, would be material to the Borrower or to Parent and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, neither Parent, Holdings nor the Borrower knows of any basis for the assertion against it of any liability that is not fully disclosed in the financial statements delivered pursuant to Section 7.05(a) which, either individually or in the aggregate, could reasonably be expected to be material to the Borrower or Parent and its Subsidiaries taken as a whole.
(d) On and as of the Initial Borrowing Date, the financial projections (the "Projections") previously delivered to the Agents and the Lenders have been prepared on a basis consistent with the financial statements referred to in Section 7.05(a) (other than as set forth or presented in such a right is reduced Projections), and there are no statements or conclusions in any of the Projections which are based upon or include information known to judgmentParent, liquidatedHoldings or the Borrower to be misleading in any material respect or which fail to take into account material information regarding the matters reported therein. The Projections contain estimates and projections based upon information that was available at such time and believed to be correct and upon assumptions believed to be reasonable; provided that Parent, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right Holdings and the Borrower do not warrant that such estimates and projections will ultimately prove 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 unsecuredhave been correct.
Appears in 1 contract
Samples: Credit Agreement (Capstar Broadcasting Partners Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished audited and unaudited financial statements delivered pursuant to the Lenders prior to the Closing DateSection 5.07, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Borrower and its consolidated Subsidiaries at the date dates of such statements of financial condition the balance sheets contained therein and the consolidated results of the operations of the Company Borrower and its consolidated Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied GAAP (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Effective Date, and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each the Borrower, on an individual basis, and of the Company Borrower and its Subsidiaries Subsidiaries, taken as a whole whole, will exceed their respective debts, (ii) the Borrower, on an individual basis, and the Company Borrower and the Subsidiary Guarantors its Subsidiaries, taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their respective ability to pay such debts as such debts mature; , and (ziii) each Solvent Entity the Borrower, on an individual basis, and the Borrower and its Subsidiaries, taken as a whole, will have sufficient capital with which to conduct its businesstheir respective businesses. For purposes of this Section 4.5(c8.05(b), "“debt" ” means any liability on a claim, and "“claim" ” means (ix) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (iiy) 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated financial statements and (iii) the unaudited pro forma consolidated balance sheet financial statement schedules of the Company Corporation and its Subsidiaries Subsidiaries, as of December 31, 2003 2009, 2010 and after giving effect to 2011, filed with the Transactions and SEC as part of the incurrence of all Indebtedness contemplated thereby as set forth Corporation’s annual report on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Form 10-K, in each case fairly present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the consolidated results of the operations of the Company Corporation and its Subsidiaries for the periods covered thereby (orrespective Fiscal Years ended on such dates, in and the case consolidated financial position of the Pro Forma Balance Sheet, presents a good faith estimate Corporation and its Subsidiaries as at such dates. The consolidated financial statements and financial statement schedules of the consolidated pro forma financial condition Corporation and its Subsidiaries, as of September 30, 2012, filed with the SEC as part of the Company (after giving effect to Corporation’s quarterly report on Form 10-Q, fairly present in all material respects the Transactions consolidated results of operations of the Corporation and its Subsidiaries for the fiscal quarter ended on such date, and the consolidated financial position of the Corporation and its Subsidiaries as at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentssuch date. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied, consistently applied (other than except as expressly set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)notes thereto.
(b) After giving effect Since December 31, 2011 to and including the TransactionsEffective Date (but, since September 30for this purpose, 2003 (as disclosed in assuming that the Company's Quarterly Report Transaction had been consummated on Form 10-Q for such quarterdate), there nothing has been no occurred that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Effective Date, after giving effect the Projections are based on good faith estimates and assumptions believed to be reasonable at the Transactions and time made; provided, however, that the Corporation makes no representation or warranty that such assumptions will prove in the future to all Indebtedness being incurred be accurate or assumed in connection therewith, and Liens created by each party in connection therewith, (x) that the sum of the assets, at a fair valuation, of each of the Company Corporation and its Subsidiaries taken will achieve the financial results reflected in the Projections (it being understood that such Projections are not to be viewed as a whole facts and are subject to significant uncertainties and contingencies, many of which are beyond the Company Corporation’s control, that no assurance can be given that any particular Projections will be realized and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred that actual results may differ and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(cdifferences may be material), "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.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to consolidated balance sheets of the Lenders prior to Borrower as at December 31, 1995 and December 31, 1996 and the Closing Daterelated statements of operations, stockholders' equity and cash flows of the Borrower for the fiscal periods ended as of said dates, (ii) the Unaudited Financial Statements furnished to consolidated balance sheets of Warehouse as at December 31, 1996 and the Lenders prior to related statements of income of Warehouse for the Closing Date fiscal period ended as of said date and (iii) the unaudited pro forma (after giving effect to the Transaction and the related financing thereof) consolidated balance sheet of the Company and its Subsidiaries Borrower as of December 31at the Initial Borrowing Date, 2003 and after giving effect to the Transactions and the incurrence copies of all Indebtedness contemplated thereby as set forth on Schedule 4.12 of which financial statements referred to in the preceding clauses (the "PRO FORMA BALANCE SHEET"i), in (ii) and (iii) have heretofore been furnished to each case Bank, present fairly in all material respects the financial condition position of the Company and its Subsidiaries respective entities at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods period covered thereby (or, in the case of the Pro Forma Balance Sheetpro forma balance sheet, presents present a good faith estimate of the consolidated pro forma financial condition of the Company Borrower and its Subsidiaries (after giving effect to the Transactions Transaction) on a consolidated basis at the date thereof)). The annual financial statements of the Borrower have been audited by KPMG Peat Marwick LLP, subjectindependent certified public accountants, who delivered unqualified opinions with respect thereto. All such financial statements have been prepared in accordance with generally accepted accounting principles and practices consistently applied except to the extent provided in the case of Unaudited Financial Statementsnotes to said financial statements and with respect to interim financial statements, subject to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPSince December 31, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1996, there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries as a whole.
(cb) On and as of the Closing Initial Borrowing Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection with the Transaction, and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets (including all intangible assets), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Credit Party will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 7.05(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, unliquidatedun- liquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Moovies Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements audited balance sheet of Holdings for the fiscal year ended on or nearest to December 27, 2002 and the draft audited balance sheets of Holdings, the Company and its Consolidated Subsidiaries for the fiscal year ended on or nearest to December 26, 2003 in the form required for Amendment No. 5 of the Registration Statement on Form S-1 for the initial public offering of Holdings (the "IPO Registration Statement Amendment") and the unaudited monthly balance sheets of Holdings as of January 23, 2004 and February 20, 2004 and, in each case, the related statements of income, cash flows and shareholders' equity of Holdings, the Company and its Consolidated Subsidiaries for the fiscal year ended on such dates, copies of which have been furnished to the Lenders Purchasers prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition position of Holdings, the Company and its Consolidated Subsidiaries at the date dates of such statements of financial condition balance sheets and the results of the operations of Holdings, the Company and its Consolidated Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied. The pro forma consolidated balance sheet of Holdings, consistently applied (the Company and its Consolidated Subsidiaries as of February 20, 2004, as if the Transactions and the other than transactions contemplated by this Agreement had been effected as set forth therein)of such date, exceptcopies of which have been furnished to the Purchasers prior to the Closing Date, present fairly in all material respects the case pro forma consolidated financial position of the quarterly statementsHoldings, for the omission Company and its Consolidated Subsidiaries as of footnotesFebruary 20, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)2004.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, on a pro forma basis after giving effect to the Transactions and all other transactions contemplated by the Transaction Documents and to all Indebtedness (including the Notes) being incurred or assumed in connection therewithassumed, and Liens created by each party Restricted Party in connection therewith, with respect to each of Holdings and the Company, individually, and each such Person and its Subsidiaries taken as a whole, (x) the sum of the assets, at a fair valuation, of each of the Company such Person, individually, and each such Person and its Subsidiaries Subsidiaries, taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity such Person has or Persons have not incurred and does does/do not intend to incur, nor believes that it it/they will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity such Person or Persons will have sufficient capital with which to conduct its its/their business. For purposes of this Section 4.5(c), "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.Section
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) The audited consolidated balance sheets of Gener and its Subsidiaries for the Applicable Fiscal Years and the related statements of income, cash flows and shareholders' capital of Gener and its Subsidiaries, copies of which have been furnished to the Lender prior to the Initial Borrowing Date, (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Datehave been audited by Xxxxxx Xxxxxxxx, (ii) have been prepared in accordance with Chilean GAAP consistently applied throughout the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date periods covered thereby, and (iii) (on the unaudited pro forma consolidated balance sheet basis disclosed in the footnotes to such financial statements) present fairly, in all material respects, the combined financial condition, results of the Company operations and cash flows of Gener and its Subsidiaries as of December 31for financial condition, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations and cash flows of the Company Gener and its Subsidiaries for the periods covered thereby (or, in the case thereby. The unaudited interim consolidated balance sheets of the Pro Forma Balance SheetGener and its Subsidiaries as at the end of, presents a good faith estimate and the related unaudited interim combined statements of income and of cash flows for, the nine-month period ended September 30, 2000 have heretofore been furnished to the Len der. During the period from September 30, 2000 to and including the Effective Date, there has been no sale, transfer or other disposition by Gener and its Subsidiaries of any material part of the consolidated pro forma business or property of the Gener and its Subsidiaries and no purchase or other acquisition by Gener or its Subsidiaries of any business or property (including any capital stock of any other Person) material in relation to the combined financial condition of the Company (after giving effect to the Transactions at the date thereof)), subjectGener and its Subsidiaries, in each case, which is not reflected in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)notes thereto and has not otherwise been disclosed in writing to the Lender on or prior to the Effective Date.
(b) After The pro forma financial information set forth on Schedule 5.6(b) (the "Pro Forma Financial Statements") accurately describes the financial condition of the Borrower and its consolidated Subsidiaries (excluding Gener and its Subsidiaries) after giving effect to (i) the Transactionsconsummation of the Remate and the Cayman Acquisition, since September 30(ii) the making of the Tranche A Bridge Loans to be made on the Initial Borrowing Date in an aggregate principal amount of not more than US$400,000,000, 2003 (as disclosed iii) the making of the Tranche B Bridge Loans to be made on the Tranche B Borrowing Date in an aggregate principal amount of not more than US$0, (iv) the Company's Quarterly Report making of the loans under the Inversiones OEA Facility, and (v) the payment of estimated fees, expenses, financing costs and settlement of intercompany accounts related to the transactions contemplated hereby and thereby. The Pro Forma Financial Statements were prepared in good faith on Form 10-Q for such quarter), there has been no Material Adverse Changethe basis of reasonable estimates.
(c) Since September 30, 2000, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect.
(d) On and as of the Closing Date, date of each Credit Event and after giving effect to the Transactions transactions contemplated hereby and to all Indebtedness the Bridge Loans being incurred or assumed in connection therewith, and Liens created by each party in connection therewiththe Credit Parties, (xi) the sum of the tangible and intangible assets, at a fair valuation, of each the Borrower on a stand-alone basis and of the Company Borrower and its Subsidiaries taken as a whole will exceed their debts; (ii) the Borrower on a stand-alone basis and the Company Borrower and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.
Appears in 1 contract
Samples: Senior Secured Short Term Bridge Credit Agreement (Aes Corporation)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to balance sheets, statements of operations, statements of stockholders' equity, statements of changes in stockholders' equity and statements of cash flows of the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements Company and its Subsidiaries as furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case fairly present fairly in all material respects the financial condition and operations of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsindicated. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) applied. After giving effect to the Transactions, since September June 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2000, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Date, after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewithincurred, and to be incurred, and Liens created created, and to be created, by each party the Company and its Subsidiaries in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries will exceed their debts; (b) the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (zc) each Solvent Entity the Company and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its businesstheir businesses. For purposes of this Section 4.5(c4.5(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Ameristar Casinos Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Datebalance sheets, statements of operations, statements of stockholders' equity, statements of changes in stockholders' equity, statements of changes in group deficiency, statements of operations and division equity, statements of assets and liabilities, statements of operating revenues and expenses, statements of changes in net assets, statements of changes in group investment (iideficiency) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet statements of the Company cash flows of Holdings and its Subsidiaries as of December 31, 2003 and after giving effect previously delivered to the Transactions Managing Agent and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case Banks fairly present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Stations at and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsindicated. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) are true and correct in all material respects and have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) applied. After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1996, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or of Holdings and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Second Restatement Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness being incurred or assumed in connection therewithincurred, and to be incurred, and Liens created created, and to be created, by each party Holdings and its Subsidiaries in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Holdings and its Subsidiaries taken as a whole Subsidiaries, and the Company Borrower and the Subsidiary Guarantors taken as a whole (each of the foregoingits Subsidiaries, a "SOLVENT ENTITY") will exceed its their debts; (yb) each Solvent Entity of Holdings and its Subsidiaries, and the Borrower and its Subsidiaries, has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of Holdings and its Subsidiaries, and the Borrower and its Subsidiaries, will have sufficient capital with which to conduct its businesstheir businesses. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Chancellor Radio Broadcasting Co)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended December 31, 2005, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended on such date, copies of which have been furnished to the Lenders prior to the Closing Date, Restatement Effective Date and (ii) the Unaudited Financial Statements unaudited consolidated balance sheets of the Borrower and its Subsidiaries for the fiscal quarters of the Borrower ended on April 22, 2006, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarters of the Borrower ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Restatement Effective Date, in each case case, present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned unaudited financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2005, there has been no condition or circumstance that, individually or in the aggregate with such other conditions or circumstances, has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by this Agreement and the other Credit Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, with respect to each of the Borrower and Liens created by each party in connection therewiththe Borrower and its Subsidiaries taken as a whole, (x) the sum of the assetsits or their assets (including goodwill), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity has it or they have not incurred and does do not intend to incur, nor believes believe that it or they will incur, debts beyond its or their ability to pay such debts as such debts mature; and (z) each Solvent Entity it or they will have sufficient capital with which to conduct its or their business. For purposes of this Section 4.5(c7.05(c), "debt" means any liability on a claim, claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2010 and the fiscal quarter ended September 9, 2011, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Date, (iii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby and (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetii) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), exceptsubject, in the case of the quarterly statementsfinancial statements not relating to a full fiscal year, for to normal year-end audit adjustments and the omission absence of footnotes). Except as, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactionsextent, since September 30, 2003 (as disclosed in the Company's Quarterly Report on ’s Form 10-Q K for such quarter)the fiscal year ended December 31, there 2010, since December 31, 2010, nothing has been no Material Adverse Changeoccurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the legality, validity or enforceability of the Loan Documents taken as a whole, (ii) the ability of the Company and the Designated Borrowers, taken as a whole, to repay the Obligations, or (iii) the rights and remedies of the Lenders or the Agents under the Loan Documents.
(cb) On and as of the Closing DateDate and on the date on which each Loan is made or each Letter of Credit is issued, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Revolving Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries (taken as a whole whole) and the Company (on a stand-alone basis) will exceed their respective debts, (y) the Company and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the Company (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will the Company and its Subsidiaries (taken as a whole) and the Company (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "5.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the Company in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished financial statements of the Borrower and its Subsidiaries delivered pursuant to Section 3.01(h), have been examined or reviewed by the Lenders prior accountants referred to the Closing Datetherein, who delivered unqualified opinions in respect thereto and (ii) the Unaudited Financial Statements furnished PRO FORMA (after giving effect to the Lenders prior to Transaction and the Closing Date and (iiirelated financing thereof) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries Borrower as of December 31at the Initial Funding Date, 2003 and after giving effect to the Transactions and the incurrence copies of all Indebtedness contemplated thereby as set forth on Schedule 4.12 of which financial statements referred to in the preceding clauses (the "PRO FORMA BALANCE SHEET")i) and (ii) have heretofore been furnished to each Lender, in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries respective entities at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods period covered thereby (or, in the case of the Pro Forma Balance SheetPRO FORMA balance sheet, presents present a good faith estimate of the consolidated pro forma FORMA financial condition of the Company Borrower and its Subsidiaries (after giving effect to the Transactions Transaction) on a consolidated basis at the date thereof)), subject, in the case of Unaudited Financial Statementsthe unaudited financial statements, to normal year-end adjustmentsaudit adjustments and the absence of footnotes. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), exceptexcept to the extent provided in the notes to said financial statements and, in the case of the quarterly unaudited interim financial statements, for the omission of footnotes, and certain reclassifications and ordinary subject to normal year end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallywhich, individually or in the aggregate, would be material).
(b) After giving effect to and the Transactionsabsence of footnotes. Since December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1997, there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Initial Funding Date, on a PRO FORMA basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including, without limitation, the Loans) being incurred in connection with the Transaction, and Liens created, and to be created, by the Borrower or assumed the Subordinated Guarantor in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets (including all contribution and subrogation rights and other intangible assets), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and Borrower or the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Subordinated Guarantor will exceed its debts; (yb) each Solvent Entity the Borrower or the Subordinated Guarantor has not incurred and or does not intend to incurto, nor believes or does not believe that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity the Borrower or the Subordinated Guarantor will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 4.05(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, disputed, undisputed, 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, subordinated, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Helicon Capital Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended January 1December 31, 20112016, and the related consolidated statements of income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended on such date, copies of which have been furnished to the Lenders prior to the Closing Date, RestatementSixth Amendment Effective Date and (ii) the Unaudited Financial Statements unaudited consolidated balance sheetssheet of the Borrower and its Subsidiaries for the fiscal quartersquarter of the Borrower ended on April 23July 15, 20112017, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal quartersquarter of the Borrower ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")RestatementSixth Amendment Effective Date, in each case case, present fairly in all material respects the consolidated financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practicesGAAP consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned unaudited financial statements, for normal year-end and audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction, since September 30January 1, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2011Since December 31, 2016, there has been no condition or circumstance that, individually or in the aggregate with such other conditions or circumstances, has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing RestatementSixth Amendment Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by this Agreement and the other Credit Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, with respect to each of the Borrower and Liens created by each party in connection therewiththe Borrower and its Subsidiaries taken as a whole, (x) the sum of the assetsits or their assets (including goodwill), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity has it or they have not incurred and does do not intend to incur, nor believes believe that it or they will incur, debts beyond its or their ability to pay such debts as such debts mature; and (z) each Solvent Entity it or they will have sufficient capital with which to conduct its or their business. For purposes of this Section 4.5(c7.058.05(c), "“debt" ” means any liability on a claim and “claim, and "claim" ” means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2002 and the interim nine-month period ended September 30, 2003, and the related consolidated statements of income, cash flow and shareholders' equity of the Borrower for the fiscal year or nine-month period ended on such dates, as the case may be, copies of which have been furnished to the Lenders prior to the Closing Restatement Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned interim financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsSince December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2002, there has been no Material Adverse ChangeEffect.
(c) On and Except as fully disclosed in the financial statements referred to in Section 7.05(a), there were as of the Closing Date, after giving effect Restatement Effective Date no liabilities or obligations with respect to the Transactions Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) be material to the sum of the assets, at a fair valuation, of each of the Company Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each whole. As of the foregoingRestatement Effective Date, a "SOLVENT ENTITY") will exceed the Borrower is not aware of any basis for the assertion against it or any of its debts; (y) each Solvent Entity has Subsidiaries of any material liability or obligation of any nature whatsoever that is not incurred and does not intend fully disclosed in the financial statements delivered pursuant to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecured5.09.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements statements of financial condition of Parent and its Consolidated Subsidiaries at December 31, 1997, and the related statements of income and cash flow and changes in shareholders' equity of Parent and its Consolidated Subsidiaries for the fiscal year ended on such date, copies of which were furnished to the Lenders Banks prior to the Closing First Restatement Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Parent and its Consolidated Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Parent and its Consolidated Subsidiaries for the periods fiscal year covered thereby (or, in the case thereby. The statements of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of Showboat and its Consolidated Subsidiaries at December 31, 1997, and the Company (after giving effect related statements of income and cash flow and changes in shareholders' equity of Showboat and its Consolidated Subsidiaries for the fiscal year ended on such date, copies of which were furnished to the Transactions Banks prior to the First Restatement Effective Date, present fairly the financial condition of Showboat and its Consolidated Subsidiaries at the date thereof)), subject, in of such statements of financial condition and the case results of Unaudited Financial Statements, to normal year-end adjustmentsthe operations of Showboat and its Consolidated Subsidiaries for the fiscal year covered thereby. All such of the foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles and practices consistently applied. The pro forma consolidated financial statements of Parent and its Consolidated Subsidiaries as of December 31, consistently applied (other than as set forth therein)1997, except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After after giving effect to the TransactionsTransaction and the financing therefor, since September 30copies of which have been furnished to the Banks prior to the First Restatement Effective Date, 2003 (present fairly the pro forma consolidated financial position of Parent and its Consolidated Subsidiaries as disclosed of December 31, 1997 and the pro forma consolidated results of operations of Parent and its Consolidated Subsidiaries for the fiscal year covered thereby. All such pro forma financial statements have been prepared in the Company's Quarterly Report on Form 10-Q for such quarter)accordance with generally accepted accounting principles and practices consistently applied. Since December 31, 1997, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
(cb) On and as of the Closing First Restatement Effective Date and the Showboat Merger Effective Date, both before and after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party Parent and its Subsidiaries in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of Parent, the Company Company, each Subsidiary Borrower, Parent and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its their respective debts; (yb) each Solvent Entity none of Parent, the Company, any Subsidiary Borrower, Parent and its Subsidiaries taken as a whole or the Company and its Subsidiaries taken as a whole has not incurred and does not incurred, nor do they intend to incur, nor believes incur or believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (zc) each Solvent Entity of Parent, the Company, each Subsidiary Borrower, Parent and its Subsidiaries taken as a whole and the Company and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its respective business. For purposes of this Section 4.5(c6.05(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, disputed, undisputed, legal, equitable, secured, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and (after giving effect to the Transactions Transaction and the incurrence related financing thereof) consolidated balance sheet of all Indebtedness contemplated thereby Holdings as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date Initial Borrowing Date, copies of such which financial statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (orhave heretofore been furnished to each Bank, in the case of the Pro Forma Balance Sheet, presents present a good faith estimate of the consolidated pro forma financial condition of the Company Holdings and its Subsidiaries (after giving effect to the Transactions Transaction) on a consolidated basis at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such Such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements. Since December 1, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1999, there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Initial Borrowing Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including, without limitation, the Loans) being incurred or assumed in connection with the Transaction, and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets (including all contribution and subrogation rights and other intangible assets), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Credit Party will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 7.05(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, disputed, undisputed, 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, subordinated, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Ubiquitel Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries Borrower as of at December 31, 2003 1996 and after giving effect to the Transactions Holdings as at December 31, 1997, and the incurrence related statements of earnings and stockholders' equity and cash flows for the fiscal period ended as of such date, in the case of the annual statements, have been examined by KMPG Peat Marwick LLP, which is an independent certified public accountant, which delivered unqualified opinions in respect thereto, copies of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (of which financial statements referred to in the "PRO FORMA BALANCE SHEET")preceding clause have heretofore been furnished to each Bank, in each case present fairly in all material respects the financial condition position of the Company Borrower or Holdings, as the case may be, and its their respective Subsidiaries at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods period covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsthereby. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements and with respect to interim financial statements, for the omission of footnotessubject to normal year end adjustments. Since December 31, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1997, there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries as a whole.
(cb) On and as of the Closing Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated to take place on or prior to the Restatement Effective Date and to all Indebtedness (including the Loans) being incurred or assumed in connection with the Transaction, and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets (including all intangible assets), at a fair market valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Credit Party will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 6.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Borrower and its Subsidiaries for its fiscal year ended on December 31, 1998 and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year ended on such date, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition position of the Company Borrower and its Subsidiaries at the date dates of such statements of financial condition balance sheet and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) . After giving effect to the Transactionstransactions contemplated herein (but for this purpose assuming that such transactions and the related financing had occurred prior to December 31, 1998), since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or of the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions transactions contemplated herein and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Borrower in connection therewith, therewith (xi) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yii) each Solvent Entity of the Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2021 and the fiscal quarter ended September 30, 2022, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Date, (iii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby and (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetii) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), exceptsubject, in the case of the quarterly statementsfinancial statements not relating to a full fiscal year, for to normal year-end audit adjustments and the omission absence of footnotes). Except as, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactionsextent, since September 30, 2003 (as disclosed in the Company's Quarterly Report on ’s Form 10-Q K for such quarter)the fiscal year ended December 31, there 2021, since December 31, 2021, nothing has been no Material Adverse Changeoccurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the legality, validity or enforceability of the Loan Documents taken as a whole, (ii) the ability of the Company and the Designated Borrowers, taken as a whole, to repay the Obligations, or (iii) the rights and remedies of the Lenders or the Agents under the Loan Documents.
(c) 5.5.1. On and as of the Closing Date, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Revolving Loans, the Term A-1 Loans, the Term A-2 Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithon the Closing Date, (xi) the sum of the assets, at a fair valuationvaluation on a going concern basis, of each of the Company and its Subsidiaries (taken as a whole and whole) will exceed their respective debts, (ii) the Company and the Subsidiary Guarantors its Subsidiaries (taken as a whole (each of the foregoing, a "SOLVENT ENTITY"whole) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature in the ordinary course of business and (ziii) each Solvent Entity will the Company and its Subsidiaries (taken as a whole) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "5.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the Company in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated financial statements and (iii) the unaudited pro forma consolidated balance sheet financial statement schedules of the Company Borrower and its Subsidiaries Subsidiaries, as of December 31, 2003 2004, 2005 and after giving effect to 2006, filed with the Transactions and SEC as part of the incurrence of all Indebtedness contemplated thereby as set forth Borrower’s annual report on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Form 10-K, in each case fairly present fairly in all material respects the financial condition consolidated results of operations of the Company Borrower and its Subsidiaries for the respective Fiscal Years ended on such dates, and the consolidated financial position of the Borrower and its Subsidiaries as at the dates of such balance sheets. Furthermore, the consolidated financial statements of the Borrower and its Subsidiaries, as at March 31, 2007 and for the three-month period ended on such date, filed with the SEC as part of the Borrower’s quarterly report on Form 10-Q, fairly present in all material respects the consolidated results of operations of the Borrower and its Subsidiaries for the three-month period ended on such date, and the consolidated financial position of the Borrower and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsbalance sheet. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied, consistently applied (other than as set forth therein), except, subject to normal year-end audit adjustments and the absence of footnotes in the case of the quarterly March 31, 2007 financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to Since December 31, 2006 (but, for this purpose, assuming that the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report Transaction had been consummated on Form 10-Q for such quarterdate), there except as otherwise publicly disclosed by the Borrower in a filing with the SEC after such date, nothing has been no occurred that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower and its Subsidiaries taken as a whole and the Company Borrower on a stand-alone basis will exceed their or its respective debts; (b) the Borrower and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of and the foregoing, Borrower on a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity stand-alone basis have or has not incurred and do or does not intend to incur, nor believes and do or does not believe that they or it will incur, debts beyond their or its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of Holdings and its Subsidiaries for the fiscal year ended on December 31, 2007, and the related consolidated statements of income, cash flows and shareholders’ equity of Holdings and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Holdings and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, NOR-GAAP consistently applied (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes).
(b) On and as of the Effective Date, and certain reclassifications after giving effect to the Transaction and ordinary end to all Indebtedness (including the Loans) being incurred or assumed and Liens to be created by the Credit Parties in connection therewith pursuant to the Security Documents, Holdings and its Subsidiaries, taken as a whole, are not insolvent and will not be rendered insolvent by the incurrence of period adjustments such indebtedness, and accruals will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature.
(all c) Except as fully disclosed in the balance sheets delivered pursuant to Section 8.05(a), there were as of which are the Effective Date no liabilities or obligations with respect to Holdings or any of a recurring its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and none of which individuallywhether or not due) which, either individually or in the aggregate, would be material)materially adverse to the Credit Parties taken as a whole. As of the Effective Date, neither Holdings nor the Borrower knows of any reasonable basis for the assertion against any Credit Part of any liability or obligation of any nature that is not fully disclosed (including, without limitation, as to the amount thereof) in the balance sheets delivered pursuant to Section 8.05(a) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(cd) On and as of the Closing Effective Date, after giving effect the Projections which have been delivered to the Transactions Administrative Agent and the Lenders prior to all Indebtedness being incurred or assumed the Effective Date have been prepared in connection therewithgood faith and are based on reasonable assumptions, and Liens created by each party there are no statements or conclusions in connection therewith, (x) the sum any of the assetsProjections which are based upon or include information known to Holdings to be misleading in any material respect or which fail to take into account material information known to Holdings regarding the matters reported therein; it being recognized by the Lenders, at a fair valuationhowever, of each of that projections as to future events are not be viewed as facts and that actual results during the Company and its Subsidiaries taken as a whole and period or periods covered by the Company and Projections may differ from the Subsidiary Guarantors taken as a whole projections results.
(each of the foregoinge) Since December 31, 2007, no event has occurred or other circumstances arisen that has had, or could reasonably be expected to have, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Trizec for the fiscal year ended on December 31, 2003 and for the three-month period ended on March 31, 2004, and the related consolidated statements of income, cash flows and shareholders’ equity of Trizec for the fiscal year or three-month period ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Trizec at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Trizec for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP. Since March 31, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2004, there has been no change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of Trizec or any of its Subsidiaries that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(cb) On and as of the Closing Effective Date, after giving effect to the Transactions transactions contemplated in this Agreement and to all Indebtedness (including the Loans and the Subsidiaries Guaranty) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithany Credit Party, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrowers and its their Subsidiaries taken as a whole and of each of the Company Borrowers on a stand-alone basis will exceed their respective debts; (b) the Borrowers and the Subsidiary Guarantors each of their Subsidiaries taken as a whole (and each of the foregoing, Borrowers on a "SOLVENT ENTITY"stand-alone basis have (or has) will exceed its debts; (y) each Solvent Entity has not incurred and does do (does) not intend to incur, nor believes and do (does) not believe that it they (it) will incur, debts beyond its their (its) ability to pay such debts as such debts mature; and (zc) the Borrowers and their Subsidiaries taken as a whole and each Solvent Entity of the Borrowers on a stand-alone basis will have sufficient capital with which to conduct its businesstheir (its) respective businesses. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements audited balanced sheets of the Business for the fiscal years and three month period ended on December 31, 1996, December 31, 1997 and March 31, 1998, respectively, and the related statements of income, cash flows and shareholders' equity of the Business for the fiscal year or three month period, as the case may be ended on such dates, copies of which have been furnished to the Lenders Banks prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries Business at the date dates of such statements of financial condition balance sheets and the results of the operations of the Company and its Subsidiaries Business for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied. The PRO FORMA consolidated financial statements of Holdings and its Subsidiaries as of March 31, consistently applied (other than as set forth therein)1998, except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After after giving effect to the TransactionsTransaction, since September 30copies of which have been furnished to the Banks prior to the Effective Date, 2003 (present fairly in all material respects the PRO FORMA consolidated financial position of Holdings and its Subsidiaries as disclosed in March 31, 1998 and the Company's Quarterly Report on Form 10-Q PRO FORMA consolidated results of operations of Holdings and its Subsidiaries for such quarter), there has been no Material Adverse Changethe period covered thereby.
(ci) On and as of the Closing Initial Borrowing Date, on a PRO FORMA basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, and Liens created by each party Credit Party in connection therewith, with respect to each Parent Guarantor and the Borrower, individually, and each such Person and its Subsidiaries taken as a whole, (x) the sum of the assets, at a fair valuation, of each of the Company such Person, individually, and each such Person and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity it has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity it will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(b), "debt" means any liability on a claim, claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements unaudited consolidating and consolidated financial statements of Holdings and its Subsidiaries for the nine-month period ended September 30, 1996, and furnished to the Lenders Banks prior to the Closing Date, (ii) the Unaudited Financial Statements furnished Restatement Effective Date pursuant to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"Section 5.14(a), in each case present fairly in all material respects the financial condition of the Company Holdings and its Subsidiaries at the date of such statements. In addition, the financial statements of financial condition and in the results offering memorandum of the operations of the Company Borrower, dated November 22, 1995 are true and its Subsidiaries correct in all material respects for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentspresented therein. All such historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles and practices consistently applied, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, except for the omission of footnotes, and certain reclassifications footnotes and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since . Since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1996, there has been no Material Adverse Changematerial adverse change in the performance, business, operations, property, assets, -40- 48 nature of assets, liabilities, condition (financial or otherwise) or prospects of the Borrower, the Borrower and its Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Restatement Effective Date, on a pro forma basis, after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, and Liens created by each party Credit Party in connection therewith, with respect to Holdings, Parent and the Borrower, individually, and each such Person and its Subsidiaries taken as a whole, (x) the sum of the assets, at a fair valuation, of each of the Company such Person, individually, and each such Person and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity it has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity it will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(b), "debt" means any liability on a claim, claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Howmet Corp /New/)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2003 and the interim nine-month period ended September 30, 2003, and the related consolidated statements of income, cash flow and shareholders' equity of the Borrower for the fiscal year or nine-month period ended on such dates, as the case may be, copies of which have been furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned interim financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsSince December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2003, there has been no Material Adverse ChangeEffect.
(c) On and Except as fully disclosed in the financial statements referred to in Section 7.05(a), there were as of the Closing Date, after giving effect Date no liabilities or obligations with respect to the Transactions Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) be material to the sum of the assets, at a fair valuation, of each of the Company Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each whole. As of the foregoingClosing Date, a "SOLVENT ENTITY") will exceed the Borrower is not aware of any basis for the assertion against it or any of its debts; (y) each Solvent Entity has Subsidiaries of any material liability or obligation of any nature whatsoever that is not incurred and does not intend fully disclosed in the financial statements delivered pursuant to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecured5.09.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma audited consolidated balance sheet of (x) the Company and its Subsidiaries for the fiscal year of the Company ended November 30, 20092015 and the related consolidated statements of income, cash flows and shareholders’ equity of the Company and its Subsidiaries as for such fiscal year, and (y) the Acquired Business and its Subsidiaries for the fiscal year of the Acquired Business ended December 31, 2003 and after giving effect to the Transactions 2009 and the incurrence related consolidated statements of all Indebtedness contemplated thereby as set forth on Schedule 4.12 income, cash flows and shareholders’ equity of the Acquired Business and its Subsidiaries for such fiscal year, and (ii) the "PRO FORMA BALANCE SHEET")unaudited consolidated balance sheet of (x) the Company and its Subsidiaries for the threetwo fiscal quarters of the Company ended AugustMay 31, 20102016 and the related consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal quarters and (y) the Acquired Business and its Subsidiaries for the eight months of the Acquired Business ended August 31, 2010 and the related consolidated statements of income and cash flows of the Acquired Business and its Subsidiaries for such fiscal period, copies of which in each case have been furnished to the Administrative Agent and each Lender prior to the Restatement Effective Date, present fairly in all material respects the consolidated financial condition of the Company and its Subsidiaries or the Acquired Business and its Subsidiaries, as the case may be, at the date dates of such said financial statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof))thereby, subject, in the case of Unaudited Financial Statementsthe unaudited financial statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principlesGAAP consistently applied, consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Restatement EffectiveClosing Date, on a pro forma basis after giving effect to the Transactions Transaction and to all Indebtedness being incurred, and to be incurred or assumed (including, without limitation, the Loans and the additional ABL Loans, if any) and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of with respect to each of (i) the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.a
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to audited consolidated balance sheets of Vantas as at June 30, 1997, June 30, 1998, December 31, 1998 and December 31, 1999 and the Lenders prior to related consolidated statements of income, stockholders equity and cash flows of Vantas for the Closing Datefiscal years ended as of such dates, which financial statements have been examined by PricewaterhouseCoopers LLP, independent certified public accountants, who delivered unqualified opinions in respect thereto, (ii) the Unaudited Financial Statements furnished to unaudited consolidated balance sheet of Vantas as at March 31, 2000 and related consolidated statements of income, stockholders equity and cash flows of Vantas for the Lenders prior to the Closing Date and fiscal quarter ended as of such date, (iii) the audited consolidated balance sheets of HQ as at December 31, 1997, December 31, 1998 and December 31, 1999 and the related statements of earnings and cash flows of HQ and its Subsidiaries for the fiscal years ended as of such dates, which financial statements have been examined by KPMG LLP independent certified public accountants, who delivered unqualified opinions in respect thereto, (iv) the unaudited consolidated balance sheet of HQ as at March 31, 2000 and the related statements of earnings and cash flows of HQ and its Subsidiaries for the fiscal quarter ended as of such date, (v) the pro forma (after giving effect to the Transaction and the related financing thereof) consolidated balance sheets and statements of income and cash flow of the Parent and its Subsidiaries as at December 31, 1999 and (vi) the estimated (after giving effect to the Transaction and the related financing thereof) consolidated balance sheet of the Company Parent and its Subsidiaries as of December at May 31, 2003 and after giving effect to the Transactions and the incurrence 2000, copies of all Indebtedness contemplated thereby as set forth on Schedule 4.12 of which financial statements referred to in the preceding clauses (the "PRO FORMA BALANCE SHEET"i), in (ii), (iii), (iv), (v) and (vi) have heretofore been furnished to each case Bank, present fairly in all material respects the financial condition position of the Company and its Subsidiaries respective entities at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods period covered thereby (or, in the case of the Pro Forma Balance Sheetpro forma financial statements, presents present a good faith estimate of the consolidated pro forma financial condition of the Company Parent and its Subsidiaries (after giving effect to the Transactions Transaction) on a consolidated basis at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetestimated balance sheet referred in clause (vi) above) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements and with respect to interim financial statements, for the omission of footnotessubject to normal year end adjustments. Since December 31, and certain reclassifications and ordinary end of period adjustments and accruals 1999 (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After after giving effect to the Transactions, since September 30, 2003 (Transaction as disclosed in the Company's Quarterly Report if same had been consummated on Form 10-Q for such quarterdate), there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties, condition (financial or otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Third Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans and the Senior Subordinated Bridge Loans) being incurred or assumed in connection with the Transaction, and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets (including all intangible assets), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Credit Party will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 6.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Parent and its Subsidiaries for the Parent’s fiscal year ended on December 31, 2001, and the consolidated balance sheet of the Parent and its Subsidiaries for the Parent’s fiscal quarter ended on September 30, 2002 and (in each case) the related consolidated statements of income, cash flows and shareholders’ equity of the Parent and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Parent and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Parent and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Effective Date, and after giving effect to the Transactions Transaction and to all Indebtedness (including the Revolving Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each of the Company Parent and each Borrower, on an individual basis, and of the Parent and its Subsidiaries Subsidiaries, taken as a whole whole, will exceed their respective debts, (ii) each of the Parent and each Borrower, on an individual basis, and the Company Parent and the Subsidiary Guarantors its Subsidiaries, taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their respective ability to pay such debts as such debts mature; , and (ziii) each Solvent Entity of the Parent and each Borrower, on an individual basis, and the Parent and its Subsidiaries, taken as a whole, will have sufficient capital with which to conduct its businesstheir respective businesses. For purposes of this Section 4.5(c7.05(b), "debt" means any liability on a claim, and "claim" means (ix) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (iiy) 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements audited consolidated balance sheets of the Borrower for its fiscal years ended on December 31, 1998, 1999 and 2000 and the draft audited consolidated balance sheet of the Borrower for its fiscal year ended on December 31, 2001, and the related audited or draft audited, as applicable, consolidated statements of income, cash flows and shareholders' equity of the Borrower for the fiscal years ended on such dates, as the case may be, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Borrower at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Borrower for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied.
(ii) Since December 31, consistently applied (other than as set forth therein)2000, except, there has been no change in the case business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the quarterly statementsBorrower or any of its Subsidiaries that has had, for the omission of footnotesor could reasonably be expected to have, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, either individually or in the aggregate, would be material)a Material Adverse Effect.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Refinancing and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Borrower and its Subsidiaries in connection therewith, therewith (xi) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yii) each Solvent Entity of the Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements audited consolidated balance sheets of the Borrower for its fiscal years ended on December 31, 2000, 2001 and 2002, and the related audited consolidated statements of income, cash flows and shareholders' equity of the Borrower for the fiscal years ended on such dates, as the case may be, copies of which have been furnished to the Lenders prior to the Closing Restatement Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Borrower at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Borrower for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied.
(ii) Since December 31, consistently applied (other than as set forth therein)2002, except, there has been no change in the case business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the quarterly statementsBorrower or any of its Subsidiaries that has had, for the omission of footnotesor could reasonably be expected to have, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, either individually or in the aggregate, would be material)a Material Adverse Effect.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, Restatement Effective Date and after giving effect to the Transactions Refinancing and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Borrower and its Subsidiaries in connection therewith, therewith (xi) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yii) each Solvent Entity of the Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements unaudited consolidated balance sheet of Holdings and its Subsidiaries as of June 30, 2009 and for the fiscal year ended on December 31, 2008, and the related consolidated statements of income, cash flows and shareholders’ equity of Holdings and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Holdings and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied.
(b) On and as of the Effective Date, consistently applied and after giving effect to the Transaction and to all Indebtedness (other than including the Loans) being incurred or assumed and Liens to be created by the Credit Parties in connection therewith pursuant to the Security Documents, Holdings and its Subsidiaries, taken as set forth thereina whole, are not insolvent and will not be rendered insolvent by the incurrence of such Indebtedness, and will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature.
(c) Except as fully disclosed in the balance sheets delivered pursuant to Section 8.05(a), except, in the case there were as of the quarterly statementsEffective Date no liabilities or obligations with respect to Holdings or any of its Subsidiaries of any nature whatsoever (whether absolute, for the omission of footnotesaccrued, contingent or otherwise and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallywhether or not due) which, either individually or in the aggregate, would be material)materially adverse to the Credit Parties taken as a whole. As of the Effective Date neither Holdings nor the Borrower knows of any reasonable basis for the assertion against any Credit Party of any liability or obligation of any nature that is not fully disclosed (including, without limitation, as to the amount thereof) in the balance sheets delivered pursuant to Section 8.05(a) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(cd) On and as of the Closing Effective Date, after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, detailed projected consolidated financial statements of each of the Company and its Subsidiaries taken as a whole Borrowers for the five fiscal years ended after January 1, 2009 (the “Projections”) which have been delivered to the Administrative Agent and the Company Lenders prior to the Effective Date were prepared in good faith and the Subsidiary Guarantors taken as a whole (each are based on reasonable assumptions, and there are no statements or conclusions in any of the foregoingProjections which are based upon or include information known to Holdings to be misleading in any material respect or which fail to take into account material information known to Holdings regarding the matters reported therein; it being recognized by the Lenders, however, that projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from the projected results.
(e) Since December 31, 2008, no event has occurred or other circumstances arisen that has had, or could reasonably be expected to have, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Borrower for the fiscal year ended on December 31, 2001 and for the nine-month period ended on September 30, 2002, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower for the fiscal year or nine-month period ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Borrower at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Borrower for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since . Since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2002, there has been no change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of the Borrower or any of its Subsidiaries that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(cb) On and as of the Closing Effective Date, after giving effect to the Transactions transactions contemplated in this Agreement and to all Indebtedness (including the Loans and the Subsidiaries Guaranty) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithany Credit Party, (xa) the sum of the assets, at a fair valuation, of each the Borrower and its Subsidiaries taken as a whole and of the Company Borrower on a stand-alone basis will exceed their respective debts; (b) the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as Borrower on a whole stand-alone basis have (each of the foregoing, a "SOLVENT ENTITY"or has) will exceed its debts; (y) each Solvent Entity has not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and
(c) the Borrower and (z) each Solvent Entity its Subsidiaries taken as a whole and the Borrower on a stand-alone basis will have sufficient capital with which to conduct its businesstheir respective businesses. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Parent and its consolidated Subsidiaries as of December at March 31, 2003 and after giving effect to 2013 (including the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 notes thereto) (the "PRO FORMA BALANCE SHEETPro Forma Balance Sheet"), a copy of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date) to (i) the 2013 Refinancing, (ii) the Loans to be made on the Effective Date and the use of proceeds thereof and (iii) the payment of fees and expenses in each case connection with the foregoing. The Pro Forma Balance Sheet has been prepared based on the best information available to the Parent as of the date of delivery thereof, and presents fairly, on a pro forma basis the estimated financial position of the Parent and its consolidated Subsidiaries as at March 31, 2013, assuming that the events specified in the preceding sentence had actually occurred at such date.
(b) The audited and unaudited financial statements delivered pursuant to Section 5.01(h) present fairly in all material respects the consolidated financial condition of the Company and its Subsidiaries at the date of such statements of financial condition position and the results of the operations and cash flows of the Company Parent at the dates and its Subsidiaries for the periods covered thereby (or, in the case to which they relate. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied throughout the periods involved, except as otherwise discussed therein and all adjustments necessary for a fair presentation of results for such periods have been made (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Effective Date, and after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and the Liens created by each party the Loan Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each the Loan Parties on a consolidated basis will exceed the sum of the Company stated liabilities and identified contingent liabilities, of the Loan Parties on a consolidated basis; (ii) the Loan Parties on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Effective Date, or (2) be able to pay their debts (contingent or otherwise) as they mature and (iv) the Loan Parties, taken as a whole, are not otherwise insolvent under the standards set forth in applicable law.
(d) Except as fully disclosed in the financial statements referred to in Section 6.05(b), there were as of the Effective Date no liabilities or obligations with respect to the Parent or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to be material to the Parent and its Subsidiaries taken as a whole whole. As of the Effective Date, the Parent does not know of any reasonable basis for the assertion against it or any of its Subsidiaries of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements referred to in Section 6.05(b) which, either individually or in the aggregate, could reasonably be expected to be material to the Parent and its Subsidiaries taken as a whole.
(e) On and as of the Company Effective Date, the Projections which have been delivered to the Lenders prior to the Effective Date have been prepared in good faith and are based on assumptions believed by the Subsidiary Guarantors Parent to be reasonable, and there are no statements or conclusions in any of the Projections which are based upon or include information known to the Parent to be misleading in any material respect or which fail to take into account material information known to the Parent regarding the matters reported therein; it being recognized by the Lenders, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by the Projections may differ from the projected results.
(f) Since December 31, 2012, there has been no change in the operations, business, properties, or financial condition of the Parent or any of its Subsidiaries taken as a whole (each of that, individually or in the foregoingaggregate, has had, or would reasonably be expected to have, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Borrower and its Subsidiaries as of at December 31, 2003 1995 and after giving effect September 30, 1996 and the related consolidated statements of operations, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year and nine-month period ended on such date, as the case may be, copies of which have been furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Initial Borrowing Date, in each case present fairly in all material respects the financial condition position of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby thereby. The consolidated balance sheet of Red Lion and its Subsidiaries at December 31, 1995 and September 30, 1996 and the related consolidated statements of income, cash flows and shareholders' equity of Red Lion and its Subsidiaries for the fiscal year and nine-month period ended on such date, as the case may be, copies of which have been furnished to the Banks prior to the Initial Borrowing Date, present fairly the financial position of Red Lion and its Subsidiaries at the date of such balance sheets and the results of the operations of Red Lion and its Subsidiaries for the periods covered thereby. The pro forma consolidated balance sheet of the Borrower and its Subsidiaries (orincluding Red Lion and its Subsidiaries) at June 30, 1996 and the pro forma income statements of the Borrower and its Subsidiaries (including Red Lion and its Subsidiaries) for the periods ended December 31, 1995 and June 30, 1996, copies of which have been furnished to the Banks prior to the Initial Borrowing Date, present fairly the pro forma financial position of the Borrower and its Subsidiaries (including Red Lion and its Subsidiaries) at June 30, 1996 and the results of the operations of the Borrower and its Subsidiaries (including Red Lion and its Subsidiaries) for the periods ended December 31, 1995 and June 30, 1996 and, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of income statements, have been prepared on the Company (after giving effect to assumption that the Transactions at the date thereof))Transaction had been consummated on January 1, subject, in the case of Unaudited Financial Statements, to normal year-end adjustments1995. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, consistently applied (other than as set forth therein), except, subject to normal year-end audit adjustments in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) nine-month financial statements referred to above. After giving effect to the TransactionsTransaction (but for this purpose assuming that the Transaction had occurred prior to December 31, 1995), since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1995, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole (it being understood and agreed, however, that the representation and warranty made pursuant to this sentence is only being made in connection with Credit Events that occur after the Initial Borrowing Date).
(ci) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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 Agreement (Doubletree Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements statements of financial condition of the Borrower at December 31, 1996, and the related statements of income and cash flow and changes in shareholders' equity of the Borrower for the fiscal year ended on such date and furnished to the Lenders Banks prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Effective Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries Borrower at the date of such statements of financial condition and the results of the operations of the Company Borrower for such fiscal year. All such financial statements have been prepared in accordance with generally accepted accounting principles and its Subsidiaries for the periods covered thereby (orpractices consistently applied. Since December 31, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company 1996 (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarterTransaction), there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created or continued by each party the Borrower and its Subsidiaries in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity such Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Tracor Inc /De)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Datebalance sheets, statements of operations, statements of stockholders' equity, statements of changes in stockholders' equity, statements of changes in group deficiency, statements of operations and division equity, statements of assets and liabilities, statements of operating revenues and expenses, statements of changes in net assets, statements of changes in group investment (iideficiency) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet statements of the Company cash flows of Holdings and its Subsidiaries as of December 31set forth in the Borrower's 12% Exchangeable Preferred Stock Offering Memorandum, 2003 and after giving effect dated January 17, 1997, furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case Restatement Effective Date fairly present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Stations at and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsindicated. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) are true and correct in all material respects and have been prepared in accordance with GAAP, consistently applied (other than as set forth therein)applied. After giving effect to the Transaction, exceptsince September 30, 1996, there has been no material adverse change in the case business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the quarterly statements, for the omission Borrower or of footnotes, Holdings and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of its Subsidiaries taken as a recurring nature and none of which individually, or in the aggregate, would be material)whole.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of each of the Closing Restatement Effective Date and the OmniAmerica Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness being incurred or assumed in connection therewithincurred, and to be incurred, and Liens created created, and to be created, by each party Holdings and its Subsidiaries in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Holdings and its Subsidiaries taken as a whole Subsidiaries, and the Company Borrower and the Subsidiary Guarantors taken as a whole (each of the foregoingits Subsidiaries, a "SOLVENT ENTITY") will exceed its their debts; (yb) each Solvent Entity of Holdings and its Subsidiaries, and the Borrower and its Subsidiaries, has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of Holdings and its Subsidiaries, and the Borrower and its Subsidiaries, will have sufficient capital with which to conduct its businesstheir businesses. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated balance sheets of each of Holding and the Borrower for their fiscal years ended on December 31, 1998 and December 31, 1997 and for the nine month period ended on September 30, 1999, respectively, and the related consolidated statements of income, cash flows and stockholders' equity of each of Holding and the Borrower for their fiscal years or nine month period ended on such dates, as the case may be, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, present fairly in all material respects the consolidated financial position of each of Holding and the Borrower at the dates of such balance sheets and the consolidated results of the operations of each of Holding and the Borrower for the periods covered thereby. All of the foregoing historical financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except, in the case of the aforementioned nine month interim financial statements, for normal year-end audit adjustments and the absence of footnotes).
(ii) The balance sheets of Lxxxxx for its fiscal years ended on February 28, 1999 and February 28, 1998 and for the Unaudited Financial Statements seven month period ended on September 30, 1999, respectively, and the related statements of income, cash flows and stockholders' equity of Lxxxxx for the fiscal years or seven month period ended on such dates, as the case may be, copies of which have been furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31Initial Borrowing Date, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries at Lxxxxx as of the date of such statements of financial condition balance sheets and the results of the operations of the Company and its Subsidiaries Lxxxxx for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned seven month interim financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(biii) After giving effect The consolidated balance sheets of Valley Systems for its fiscal year ended on June 30, 1998 and for the six month period ended on December 31, 1998, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of Valley Systems for the fiscal year or six month period ended on such dates, as the case may be, copies of which have been furnished to the TransactionsLenders prior to the Initial Borrowing Date, since September 30, 2003 (as disclosed present fairly in all material respects the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and consolidated financial position of Valley Systems as of the Closing Date, after giving effect to date of such balance sheets and the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum consolidated results of the assets, at a fair valuation, operations of each Valley Systems for the periods covered thereby. All of the Company and its Subsidiaries taken as a whole foregoing historical financial statements have been prepared in accordance with generally accepted accounting principles consistently applied (except, in the case of the aforementioned six month interim financial statements, for normal year-end audit adjustments and the Company and the Subsidiary Guarantors taken as a whole (each absence of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(cfootnotes), "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.
Appears in 1 contract
Samples: Credit Agreement (Hydrochem Industrial Services Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated and consolidating statements of financial condition of Furniture Brands and its Subsidiaries for the Fiscal Years ended December 31, 1997, 1998 and 1999 and the related consolidated and consolidating statements of income and consolidated statements of cash flow and changes in shareholders' equity of Furniture Brands and its Subsidiaries for the Fiscal Years ended on such dates, and furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Effective Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case case, present fairly in all material respects the financial condition of the Company Furniture Brands and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Furniture Brands and its Subsidiaries for the periods Fiscal Years covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)applied.
(b) After giving effect to the TransactionsSince December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), 1999 there has been no Material Adverse ChangeEffect.
(c) On and Except as fully disclosed in the financial statements referred to in Section 7.05(a), there were as of the Closing Date, after giving effect Effective Date no liabilities or obligations with respect to the Transactions and to all Indebtedness being incurred Furniture Brands or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum any of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole of any nature whatsoever (whether absolute, accrued, contingent or otherwise and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "debt" means any liability on a claim, and "claim" means (i) right to payment, whether or not such due) which, either individually or in aggregate, could reasonably be expected to have 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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Parent and its Subsidiaries for the fiscal year ended December 31, 1997 and the three month period ended on March 31, 1998, and the related statements of income, cash flows and shareholders' equity of Parent and its Subsidiaries for such fiscal year or three month period ended as of said dates, as the case may be, copies of which have been furnished to the Lenders Banks on or prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case fairly present fairly in all material respects the financial condition of the Company Parent and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Parent and its Subsidiaries for such fiscal year and three month period, as the periods covered thereby (orcase may be. All of the foregoing financial statements are true and correct in all material respects and have been prepared in accordance with GAAP consistently applied except to the extent provided in the notes to said financial statements and subject, in the case of the Pro Forma Balance SheetMarch 31, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements1998 statements, to normal year-end adjustments. All such The pro forma consolidated financial statements (other than of Parent and its Subsidiaries as of December 31, 1997, in each case after giving effect to the aforesaid Pro Forma Balance Sheet) Transaction and the financing therefor, copies of which have been prepared furnished to the Banks prior to the Initial Borrowing Date, present fairly in accordance with GAAPall material respects the pro forma consolidated financial position of Parent and its Subsidiaries as of December 31, consistently applied (other than as set forth therein), except, in 1997 and the case pro forma -42- 50 consolidated results of the quarterly statements, operations of Parent and its Subsidiaries for the omission of footnotes, and certain reclassifications and ordinary end of twelve month period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) covered thereby. After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1997, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or of Parent and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Initial Borrowing Date, on a pro forma basis after giving effect to the Transactions Transaction and all Indebtedness incurred, and to all Indebtedness being incurred or assumed in connection therewithbe incurred, and Liens created created, and to be created, by each party Parent and its Subsidiaries in connection therewith, with the transactions contemplated herein (xa) the sum of the assets, at a fair valuation, of each of the Company Parent and its Subsidiaries taken as a whole whole, Holdings and the Company and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of whole, and the foregoingBorrower and its Subsidiaries taken as a whole, a "SOLVENT ENTITY") will exceed its their debts; (yb) each Solvent Entity of Parent and its Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken as a whole, has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (zc) each Solvent Entity of Parent and its Subsidiaries taken as a whole, Holdings and its Subsidiaries taken as a whole, and the Borrower and its Subsidiaries taken as a whole, will have sufficient capital with which to conduct its business. For purposes of this their businesses.
(c) Except as fully disclosed in the financial statements delivered pursuant to Section 4.5(c7.05(a), "debt" means there were as of the Initial Borrowing Date no liabilities or obligations with respect to Parent or any liability on a claimof its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and "claim" means (i) right to payment, whether or not due) which, either individually or in aggregate, would be material to the Borrower or to Parent and its Subsidiaries taken as a whole. As of the Initial Borrowing Date, neither Parent, Holdings nor the Borrower knows 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 7.05(a) which, either individually or in the aggregate, could reasonably be expected to be material to the Borrower or Parent and its Subsidiaries taken as a whole.
(d) On and as of the Initial Borrowing Date, the financial projections (the "Projections") previously delivered to the Agents and the Banks have been prepared on a basis consistent with the financial statements referred to in Section 7.05(a) (other than as set forth or presented in such a right is reduced Projections), and there are no statements or conclusions in any of the Projections which are based upon or include information known to judgmentParent, liquidatedHoldings or the Borrower to be misleading in any material respect or which fail to take into account material information regarding the matters reported therein. The Projections contain estimates and projections based upon information that was available at such time and believed to be correct and upon assumptions believed to be reasonable, unliquidatedand Parent, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right Holdings and the Borrower do not warrant that such estimates and projections will ultimately prove 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 unsecuredhave been correct.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Borrower and its Subsidiaries for the Borrower’s fiscal year ended on December 31, 2009, and the consolidated balance sheet of the Borrower and its Subsidiaries for the Borrower’s fiscal quarter ended on March 31, 2010 and (in each case) the related consolidated statements of income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Amendment and Restatement Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Borrower and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After On and as of the Original Effective Date, and after giving effect to the TransactionsTransaction and to all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith, since September 30the Credit Parties, 2003 (taken as disclosed a whole, are not insolvent and will not be rendered insolvent by the incurrence of such indebtedness, and will not be left with unreasonably small capital with which to engage in the Company's Quarterly Report on Form 10-Q for their respective businesses and will not have incurred debts beyond their ability to pay such quarter), there has been no Material Adverse Changedebts as they mature.
(c) Except as fully disclosed in the financial statements referred to in Section 8.05(a), there were as of the Amendment and Restatement Effective Date no liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to be material to the Borrower and its Subsidiaries taken as a whole. As of the Amendment and Restatement Effective Date, the Credit Parties know of no reasonable basis for the assertion against it or any of its Subsidiaries of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements or referred to in Section 8.05(a) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) On and as of the Closing Amendment and Restatement Effective Date, after giving effect the Projections which have been delivered to the Transactions Administrative Agent and the Lenders prior to all Indebtedness being incurred or assumed the Amendment and Restatement Effective Date have been prepared in connection therewithgood faith and are based on reasonable assumptions, and Liens created by each party there are no statements or conclusions in connection therewith, (x) the sum any of the assetsProjections which are based upon or include information known to the Borrower to be misleading in any material respect or which fail to take into account material information known to the Borrower regarding the matters reported therein; it being recognized by the Lenders, at a fair valuationhowever, of each of that projections as to future events are not be viewed as facts and that actual results during the Company and its Subsidiaries taken as a whole and period or periods covered by the Company and Projections may differ from the Subsidiary Guarantors taken as a whole projections results.
(each of the foregoinge) Since June 7, 2010, no event has occurred or other circumstances arisen that has had, or could reasonably be expected to have, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) (i) The Audited Financial Statements audited consolidated statements of financial condition of the Company and its Subsidiaries at December 31, 1996, December 31, 1997 and December 31, 1998 and the related consolidated statements of income and cash flow and changes in shareholders' equity of the Company and its Subsidiaries for the fiscal years ended on such dates, and furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements audited consolidated balance sheet of the Company and its Subsidiaries as of the end of the fiscal quarter of the Company ended September 30, 1999, and the related consolidated statements of earnings, shareholders' equity and cash flows of the Company and its Subsidiaries for such quarterly period, and furnished to the Lenders prior to the Closing Date and Date, (iii) the consolidated balance sheet of the Company and its Subsidiaries as of the end of the fiscal month of the Company ended October 31, 1999 and the related consolidated statements of earnings, shareholders' equity and cash flows of the Company and its Subsidiaries for such monthly period and (iv) an unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 the Closing Date and after giving effect to the Transactions and the incurrence of all Indebtedness (including the Bridge Loan, the Senior Credit Facility and the Mezzanine Financing) contemplated thereby as set forth on Schedule 4.12 herein (the "PRO FORMA BALANCE SHEETPro Forma Balance Sheet"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma PRO FORMA financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly and monthly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse ChangeChange in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole.
(c) On and as of the Closing Date, after giving effect to the Transactions and to all Indebtedness (including the Bridge Loan, the Senior Credit Facility and the Mezzanine Financing) being incurred or assumed in connection therewithassumed, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.nor
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to audited combined balance sheets of the Lenders prior to Business as of May 28, 1995 and May 26, 1996, and the Closing Daterelated combined statements of operations for each of the years in the three year period ended May 26, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date 1996 and (iii) the unaudited pro forma consolidated combined balance sheet sheets of the Company and its Subsidiaries Business as of December 31November 24, 2003 and after giving effect to the Transactions 1996, and the incurrence related combined statements of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (operations for the "PRO FORMA BALANCE SHEET")six month period ended November 24, 1996, in each case furnished to the Banks prior to the Effective Date pursuant to Section 5.18, present fairly the combined assets, liabilities and business equity of the Business at the respective dates of such balance sheets and its combined revenues less direct expenses before taxes for each of the years in all material respects the three year period ended May 26, 1996 or the six month period ended November 24, 1996, as the case may be, on the basis described in Note 1 to the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (oraudited by KPMG Peat Marwick, LLP, in the case of the Pro Forma Balance Sheetconformity with generally accepted accounting principles. Furthermore, presents a good faith estimate of the consolidated all pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, statements or information contained in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) Offering Circular have been prepared in accordance with GAAPby management of the Borrower from the historical financial statements referenced above, consistently applied (other than to reflect adjustments as set forth therein), except, if the Transaction had occurred on the dates provided in the case Offering Circular, based on assumptions that management of the quarterly statementsBorrower, for on the omission of footnotesInitial Borrowing Date, and certain reclassifications and ordinary end of period adjustments and accruals (all of which believes are of a recurring nature and none of which individually, or reasonable in the aggregate, would be material)circumstances.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(ci) On and as of the Closing Initial Borrowing Date, on a pro forma basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, and Liens created by each party Credit Party in connection therewith, with respect to Holdings and the Borrower, individually, and each such Person and its Subsidiaries taken as a whole, (x) the sum of the assets, at a fair valuation, of each of the Company such Person, individually, and each such Person and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity it has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity it will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(b), "debt" means any liability on a claim, claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma audited consolidated balance sheet statements of financial condition of the Company Borrower and its Subsidiaries as of December 31, 2003 1993, 1994 and after giving effect to the Transactions 1995 and the incurrence related consolidated statements of all Indebtedness contemplated thereby income and cash flow and changes in shareholders' equity of Holdings and its Subsidiaries, and the notes thereto for the fiscal years ended on such dates and (ii) the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as set forth of September 30, 1996, and the related consolidated statements of income and cash flow for the nine-month period ended on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")such date, in each case furnished to the Banks prior to the Effective Date, present fairly in all material respects the financial condition of the Company Holdings and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (orrespective Fiscal Year or nine-month period, in as the case of the Pro Forma Balance Sheetmay be, presents a good faith estimate of the consolidated pro forma financial condition of the Company described therein (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal ordinary year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein)applied, except, in the case of the quarterly nine-month statements, for the omission of footnotes, and certain reclassifications footnotes and ordinary year-end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) adjustments. After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1995, there has have been no circumstances or events the result of which has had a Material Adverse ChangeEffect.
(cb) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Revolving Loans) being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.created
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet statements of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at October 31, 1996 and April 30, 1997 and the re- lated consolidated statements of income and cash flow and changes in shareholders' equity of the Borrower and its Subsidiaries for the fiscal year ended and fiscal quarter ended on such dates, present fairly the consolidated financial condition of the Borrower at the date of such statements statement of financial condition and the results of the consolidated operations of the Company Borrower for such fiscal year and its Subsidiaries for the periods covered thereby (orsuch fiscal quarter, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsrespectively. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) will have been prepared in accordance with GAAPgenerally accepted accounting principles and practices consistently-applied. Since November 1, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1996, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Effective Date, after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Borrower and its Subsidiaries in connection therewiththerewith (assuming the full utilization of the Total Revolving Loan Commitment on the Effective Date), (xa) the sum of the assets, at a fair valuation, of each the Borrower (on a stand-alone basis), and of the Company Borrower and its Subsidiaries taken as (on a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoingconsolidated basis), a "SOLVENT ENTITY") will exceed its their respective debts; (yb) each Solvent Entity has the Borrower (on a stand-alone basis), and the Borrower and its Subsidiaries (on a consolidated basis), have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and
(c) the Borrower (on a stand-alone basis), and the Borrower and its Subsidiaries (z) each Solvent Entity on a consolidated basis), will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Autotote Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Holdings and its Subsidiaries for the fiscal year and fiscal quarter ended on December 31, 1998 and June 30, 1999, respectively and the related consolidated statements of income, cash flows and shareholders' equity of Holdings and its Subsidiaries for the fiscal year or fiscal quarter, as the case may be, ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Effective Date, (ii) present fairly in all material respects the Unaudited Financial Statements furnished to consolidated financial position of Holdings and its Subsidiaries at the Lenders prior to date of such balance sheets and the Closing Date and (iii) the unaudited pro forma consolidated balance sheet results of the Company operations of Holdings and its Subsidiaries for the periods covered thereby. All of the foregoing historical financial statements have been prepared in accordance with generally accepted accounting principles consistently applied except as disclosed in the notes thereto. The PRO FORMA consolidated financial statements of Holdings and its Subsidiaries as of December 31, 2003 and 1998, after giving effect to the Transactions entering into of the Credit Documents and the incurrence financing therefor, copies of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (which have been furnished to the "PRO FORMA BALANCE SHEET")Lenders prior to the Effective Date, in each case present fairly in all material respects the PRO FORMA consolidated financial condition position of the Company Holdings and its Subsidiaries at the date as of such statements of financial condition December 31, 1998 and the PRO FORMA consolidated results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (orfiscal year ended December 31, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments1998. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactionsentering into of the Credit Documents, since September 30December 31, 2003 (1998, nothing shall have occurred that has had, or could reasonably be expected to have, a material adverse effect on the business, operations or financial condition of Holdings and its Subsidiaries taken as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Changea whole.
(cb) On and as of the Closing Date, Effective Date and after giving effect to the Transactions entering into of the Credit Documents and to all Indebtedness (including any Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, therewith (xa) the sum of the assets, at a fair valuation, of each of the Company Holdings and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity Holdings and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes that it will incur, debts beyond and
(c) Holdings and its ability to pay such debts Subsidiaries taken as such debts mature; and (z) each Solvent Entity a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements Apria has previously furnished to each of the Lenders prior to Banks consolidated balance sheets of Apria and its consolidated Subsidiaries as at December 31, 1997 and the Closing Daterelated consolidated statements of income, retained earnings and cash flow of Apria and its consolidated Subsidiaries for the fiscal year ended on that date, with the opinion (ii) in the Unaudited Financial Statements furnished to case of the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet and statements) of Ernst & Young, and the Company unaudited consolidated and consolidating balance sheets of Apria and its consolidated Subsidiaries as of December 31at June 30, 2003 and after giving effect to the Transactions 1998 and the incurrence related consolidated statements of all Indebtedness contemplated thereby as set forth income, retained earnings and cash flow of Apria and its consolidated Subsidiaries for the three-month period ended on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case such date. All such financial statements fairly present fairly in all material respects the consolidated financial condition of the Company Apria and its Subsidiaries consolidated Subsidiaries, as at the date of such statements of financial condition those dates and the consolidated results of the their operations of the Company and its Subsidiaries for the periods covered thereby fiscal year and three-month period ended on those dates (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementssuch financial statements as at June 30, 1998, to normal year-end audit adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared ), all in accordance with GAAP. Neither Apria nor any of its Material Subsidiaries has on the Effective Date any material contingent liabilities, consistently applied liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except (other than i) as set forth therein), except, referred to or reflected or provided for in the case of the quarterly statements, for the omission of footnotesmost recent 50 57 balance sheet referred to above, and certain reclassifications and ordinary end of period adjustments and accruals (all of which ii) those that are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September permitted by this Agreement. Since June 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse Changematerial adverse change in the consolidated financial condition, operations, business or prospects taken as a whole of Apria and its consolidated Subsidiaries from that set forth in the financial statements as at June 30, 1998 for the period ending on that date, excluding the 1998 Third Quarter Charges and Reserves.
(cb) On and as of the Closing Effective Date, on a pro forma basis after giving effect to the Transactions and to all incurrence of the Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, under this Agreement: (xi) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") Credit Party will exceed its debts; (yii) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (ziii) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 8.5(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to consolidated balance sheets of the Lenders prior to Borrower and its Subsidiaries at December 31, 1993 and at September 30, 1994 and the Closing Daterelated consolidated statements of income and retained earnings for the fiscal year or nine-month period, as the case may be, then ended, which (in the case of the year-end statements) have been examined by Deloitte & Touche, independent certified public accountants, who delivered an unqualified opinion in respect thereto and (in the case of the September 30, 1994 statements) have been reviewed by Deloitte & Touche, and (ii) the Unaudited Financial Statements furnished pro forma (after giving effect to the Lenders prior to Refinancing Transaction and the Closing Date and (iiiincurrence of Loans on the Restatement Effective Date) the unaudited pro forma consolidated balance sheet sheets of the Company Borrower and its Subsidiaries as of December 31the Restatement Effective Date, 2003 and after giving effect copies of each of which have heretofore been furnished to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")each Bank, in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries respective entities at the date dates of such said statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods period covered thereby (or, in the case of the Pro Forma Balance Sheetpro forma balance sheet, presents present a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions Borrower and its Subsidiaries at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetsuch pro forma balance sheets) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein), except, except to the extent provided in the case of the quarterly notes to said financial statements. Since December 31, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1993, there has been no Material Adverse Changematerial adverse change in the performance, business, assets, nature of assets, liabilities, operations, properties or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Restatement Effective Date, on a pro forma basis after giving effect to the Transactions Refinancing Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection with the Refinancing Transaction, and Liens created, and to be created, by each Credit Party in connection therewith, and Liens created by each party in connection therewith, : (xa) the sum of the assets, at a fair valuation, of each the Borrower and of the Company Borrower and its Subsidiaries taken as a whole will exceed their respective debts; (b) neither the Borrower nor the Borrower and the Company and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoinghave incurred or intend to, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incuror believe that they will, nor believes that it will incur, incur debts beyond its their ability to pay such debts as such debts mature; and
(c) the Borrower and (z) each Solvent Entity the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its businesstheir respective businesses. For purposes of this Section 4.5(c), 7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Staff Leasing Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Trizec for the fiscal year ended on December 31, 2004 and for the six-month period ended on June 30, 2005, and the related consolidated statements of income, cash flows and shareholders’ equity of Trizec for the fiscal year or six-month period ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Trizec at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Trizec for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September . Since June 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2005, there has been no change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of Trizec, Borrower or any of their respective Subsidiaries that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(cb) On and as of the Closing Effective Date, after giving effect to the Transactions transactions contemplated in this Agreement and to all Indebtedness (including the Loans and the Guaranty) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithany Credit Party, (xa) the sum of the assets, at a fair valuation, of each of Trizec, the Company Borrower and its their respective Subsidiaries taken as a whole and the Company of each of Trizec and the Subsidiary Guarantors Borrower on a stand-alone basis will exceed their respective debts; (b) Trizec, the Borrower and each of their respective Subsidiaries taken as a whole (and each of Trizec and the foregoing, Borrower on a "SOLVENT ENTITY"stand-alone basis have (or has) will exceed its debts; (y) each Solvent Entity has not incurred and does do (does) not intend to incur, nor believes and do (does) not believe that it they (it) will incur, debts beyond its their (its) ability to pay such debts as such debts mature; and (zc) Trizec, the Borrower and their respective Subsidiaries taken as a whole and each Solvent Entity of Trizec and the Borrower on a stand-alone basis will have sufficient capital with which to conduct its businesstheir (its) respective businesses. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to audited consolidated balance sheet of the Lenders prior to Borrower and its Subsidiaries for the Closing Datefiscal year of the Borrower ended December 31, 2003 and the related consolidated statements of income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries for such fiscal year, and (ii) the Unaudited Financial Statements unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ended March 31, 2004 and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter, copies of which, in each case, have been furnished to the Lenders Administrative Agent and each Bank prior to the Closing Date Initial Borrowing Date, present fairly in all material respects the consolidated financial condition of the Borrower and (iii) its Subsidiaries at the dates of said financial statements and the results for the periods covered thereby, subject, in the case of the unaudited financial statements, to normal year-end adjustments. All such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied, except to the extent provided in the notes to said financial statements and subject, in the case of the three-month statements, to normal year-end audit adjustments (all of which are of a recurring nature and none of which, individually or in the aggregate, would be material) and the absence of footnotes.
(b) On and as of the Initial Borrowing Date, after giving effect to the Transaction occurring on such date and to all Indebtedness (including the Loans) being incurred or assumed on such date and Liens created by the Credit Parties in connection therewith, the Borrower has received a reasonably equivalent value or greater in exchange for the Obligations that have arisen (and the Liens securing such Obligations) as a result of the consummation of the Transaction.
(c) The pro forma consolidated balance sheet of the Company and its Subsidiaries Borrower as of December 31, 2003 and after giving effect to as reflected in the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition Offering Memorandum of the Company and its Subsidiaries at the date Borrower dated April 29, 2004, a copy of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheetwhich has heretofore been furnished to each Bank, presents a good faith estimate of the consolidated pro forma financial condition of the Company (Borrower after giving effect to the Transactions Transaction at the date thereof)).
(d) Consolidated EBITDA for the consecutive 12-month period of Holdings ended March 31, subject, 2004 was at least $86,000,000.
(e) Except (i) as fully disclosed in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements referred to in Section 7.05(a) and (other than ii) for the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPObligations, consistently applied (other than the Existing Indebtedness, the Intercompany Loans, the Senior Second Lien Notes and the PIK Preferred Equity, there were as set forth therein), except, in the case of the quarterly statementsInitial Borrowing Date no liabilities or obligations with respect to Holdings or any of its Subsidiaries of any nature whatsoever (whether absolute, for the omission of footnotesaccrued, contingent or otherwise and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallywhether or not due) which, either individually or in the aggregate, would could reasonably be material)expected to have a Material Adverse Effect. As of the Initial Borrowing Date and except for the Obligations, the Existing Indebtedness, the Intercompany Loans, the Senior Second Lien Notes and the PIK Preferred Equity, Holdings knows of no reasonable basis for the assertion against it or any of its Subsidiaries of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements referred to in Section 7.05(a) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(bf) After giving effect to the TransactionsTransaction (but for this purpose assuming that the Transaction and the related financing had occurred prior to December 31, 2003), since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2003, there has been no change in the condition (financial or otherwise), business, operations, assets or liabilities of Holdings or any of its Subsidiaries that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse ChangeEffect.
(c) On and as of the Closing Date, after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated statements of financial condition of Holdings and its Subsidiaries at December 31, 1997 and the related consolidated statements of income and cash flow and changes in shareholders' equity of Holdings and its Subsidiaries for the fiscal year ended on such date, and furnished to the Lenders Banks prior to the Closing Restatement Effective Date, and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Holdings and its Subsidiaries as of December the end of the fiscal quarter of Holdings ended March 31, 2003 1998, and after giving effect the related consolidated statements of earnings, shareholder's equity and cash flows of Holdings and its Subsidiaries for such quarterly period, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Restatement Effective Date, in each case present fairly in all material respects the financial condition of the Company Holdings and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (orrespective fiscal year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly and monthly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1997, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole.
(c) On and as of the Closing Restatement Effective Date, after giving effect to the Transactions Original Transaction and the Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of Borrower, individually, the Company and its Subsidiaries U.S. Borrowers taken as a whole, the U.K. Borrowers taken as a whole and the Company Holdings and the Subsidiary Guarantors taken as its Subsidiaries (on a whole consolidated basis) (each of the foregoing, as to itself, as to itself and the other relevant Borrowers or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(c), "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.
Appears in 1 contract
Samples: Credit Agreement (Big Flower Press Holdings Inc /Pred/)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated financial statements and (iii) the unaudited pro forma consolidated balance sheet financial statement schedules of the Company Corporation and its Subsidiaries Subsidiaries, as of December 31, 2003 2007, 2008 and after giving effect to 2009, filed with the Transactions and SEC as part of the incurrence of all Indebtedness contemplated thereby as set forth Corporation’s annual report on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Form 10-K, in each case fairly present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the consolidated results of the operations of the Company Corporation and its Subsidiaries for the periods covered thereby (orrespective Fiscal Years ended on such dates, in and the case consolidated financial position of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions Corporation and its Subsidiaries as at the date thereof)), subject, in the case dates of Unaudited Financial Statements, to normal year-end adjustmentssuch balance sheets. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied, consistently applied (other than except as expressly set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)notes thereto.
(b) After giving effect to Since December 31, 2009 (but, for this purpose, assuming that the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report Transaction had been consummated on Form 10-Q for such quarterdate), there nothing has been no occurred that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Corporation and its Subsidiaries taken as a whole will exceed their debts; (b) the Corporation and the Company and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (zc) each Solvent Entity will the Corporation and its Subsidiaries taken as a whole do not have sufficient unreasonably small capital with which to conduct its businesstheir businesses. For purposes of this Section 4.5(c7.03(c), "“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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Adience and its Subsidiaries as (which does not include Newco, Xxxxxxxx or any of December their respective Subsidiaries) at April 30, 1996 and January 31, 2003 1997 and after giving effect the related statements of consolidated income, consolidated cash flows and shareholders' equity of Adience and its Subsidiaries for the fiscal year and the nine-month period ended on such date, as the case may be, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (Initial Borrowing Date, fairly present the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition consolidated results of the Company operations of Adience and its Subsidiaries for the respective fiscal year or nine-month period ended on such date, as the case may be, and consolidated financial position of Adience and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsbalance sheet. All such consolidated financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, consistently applied (other than as set forth therein), except, subject to normal year-end audit adjustments and the absence of footnotes in the case of the quarterly January 31, 1997 financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect The Accounting Pack (as defined in the Acquisition Agreement) for Xxxxxxxx and its Subsidiaries for the accounting reference period ended December 31, 1996, and furnished to the TransactionsBanks prior to the Initial Borrowing Date, since September was prepared in accordance with accounting principles and practices generally accepted in the United Kingdom as at December 31, 1996, and gives a true and fair view of the state of affairs of Xxxxxxxx and its Subsidiaries as at December 31, 1996.
(c) Since April 30, 2003 1996 (as disclosed in but for this purpose, assuming that the Company's Quarterly Report Transaction had been consummated on Form 10-Q for such quarterdate), there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Holdings, any Borrower, Holdings and its Subsidiaries taken as a whole or any Borrower and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Holdings and its Subsidiaries taken as a whole and the Company each Borrower on a stand-alone basis will exceed their respective debts; (b) each of Holdings and the Subsidiary Guarantors its Subsidiaries taken as a whole (and each of the foregoing, Borrower on a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has stand-alone basis have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended January 2, 2021, and the related consolidated statements of income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries for the fiscal year of the Borrower ended on such date, copies of which have been furnished or otherwise made available to the Lenders prior to the Closing Date, Seventh Amendment Effective Date and (ii) the Unaudited Financial Statements unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ended on April 24, 2021, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ended on such dates, copies of which have been furnished or otherwise made available to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Seventh Amendment Effective Date, in each case case, present fairly in all material respects the consolidated financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), except, in the case of the quarterly aforementioned unaudited financial statements, for normal year-end and audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsSince January 2, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2021, there has been no condition or circumstance that, individually or in the aggregate with such other conditions or circumstances, has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Seventh Amendment Effective Date, on a pro forma basis after giving effect to the Transactions transactions contemplated by this Agreement and the other Credit Documents and to all Indebtedness (including the Loans) being incurred or assumed in connection therewithassumed, with respect to each of the Borrower and Liens created by each party in connection therewiththe Borrower and its Subsidiaries taken as a whole, (x) the sum of the assetsits or their assets (including goodwill), at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its or their debts; (y) each Solvent Entity has it or they have not incurred and does do not intend to incur, nor believes believe that it or they will incur, debts beyond its or their ability to pay such debts as such debts mature; and (z) each Solvent Entity it or they will have sufficient capital with which to conduct its or their business. For purposes of this Section 4.5(c8.05(c), "“debt" ” means any liability on a claim and “claim, and "claim" ” means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated financial statements and (iii) the unaudited pro forma consolidated balance sheet financial statement schedules of the Company Corporation and its Subsidiaries Subsidiaries, as of December 31, 2002, 2003 and after giving effect to 2004, filed with the Transactions and SEC as part of the incurrence of all Indebtedness contemplated thereby as set forth Corporation’s annual report on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Form 10-K, in each case fairly present fairly in all material respects the financial condition consolidated results of operations of the Company Corporation and its Subsidiaries for the respective Fiscal Years ended on such dates, and the consolidated financial position of the Corporation and its Subsidiaries as at the dates of such balance sheets. Furthermore, the consolidated financial statements of the Corporation and its Subsidiaries, as at September 30, 2005 and for the nine-month period ended on such date, filed with the SEC as part of the Corporation’s quarterly report on Form 10-Q, fairly present in all material respects the consolidated results of operations of the Corporation and its Subsidiaries for the nine-month period ended on such date, and the consolidated financial position of the Corporation and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsbalance sheet. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPGAAP consistently applied, consistently applied (other than as set forth therein), except, subject to normal year-end audit adjustments and the absence of footnotes in the case of the quarterly September 30, 2005 financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to Since December 31, 2004 (but, for this purpose, assuming that the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report Transaction had been consummated on Form 10-Q for such quarterdate), there nothing has been no occurred that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(c) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Corporation and its Subsidiaries taken as a whole and each Borrower on a stand-alone basis will exceed their or its respective debts; (b) the Company Corporation and the Subsidiary Guarantors its Subsidiaries taken as a whole (and each of the foregoing, Borrower on a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity stand-alone basis have or has not incurred and do or does not intend to incur, nor believes and do or does not believe that they or it will incur, debts beyond their or its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Samples: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated balance sheet of the Borrower and its Subsidiaries at December 31, 2000 and the related consolidated statements of operations, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year ended on such date and (ii) the consolidated balance sheet of the Borrower and its Subsidiaries at March 31, 2001 and the consolidated statements of operations and cash flows of the Borrower and its Subsidiaries for the three-month period ended on such date, copies of which have been furnished to the Lenders prior to the Closing Effective Date, (ii) present fairly the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet financial position of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustmentsthereby. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth thereinprovided that the aforementioned interim financial statements have been prepared in accordance with generally accepted accounting principles for interim financial statements and the requirements of Regulation S-X under the Securities Act). Since December 31, except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2000, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; it being understood and agreed that the occurrence of any event that occurred, and was disclosed by the Borrower or any of its Subsidiaries by means of public Exchange Act filings, at any time from December 31, 2000 to the Effective Date shall not constitute an event which had a material adverse effect on the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole during such period.
(ci) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions transaction contemplated hereby and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Holdings and its Subsidiaries and of the Borrower and its Subsidiaries for the fiscal year and nine month period ended on November 2, 1996 and August 9, 1997, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of Holdings and its Subsidiaries and of the Borrower and its Subsidiaries for the fiscal year or nine month period, as the case may be, ended on such dates, copies of which have been furnished to the Lenders Banks on or prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Holdings and its Subsidiaries and of the Borrower and its Subsidiaries, as applicable, at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of Holdings and its Subsidiaries and the Company Borrower and its Subsidiaries for the periods covered thereby (orthereby. All of the foregoing financial statements have been prepared in accordance with generally accepted accounting principles consistently applied subject, in the case of the Pro Forma Balance SheetAugust 9, presents a good faith estimate of the consolidated pro forma 1997 financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsstatements, to changes resulting from audit and normal year-end adjustments. All such financial statements (other than The pro forma consolidated balance sheets of Holdings and its Subsidiaries and the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), exceptBorrower and its Subsidiaries, in each case as of November 1, 1997 and after giving effect to the Transaction, a copy of which has been furnished to the Banks prior to the Effective Date, presents fairly in all material respects the pro forma consolidated financial position of Holdings and its Subsidiaries and the Borrower and its Subsidiaries, in each case as of November 1, 1997. Since November 2, 1996, no event or change of any kind or character has occurred that has had, or could reasonably be expected to have, a material adverse affect on the business, operations, property, assets, liabilities or condition (financial or otherwise) of the quarterly statements, for Borrower and the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of Guarantors taken as a recurring nature and none of which individually, or in the aggregate, would be material)whole.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, Effective Date and after giving effect to the Transactions Transaction and to all Indebtedness the Loans being incurred or assumed in connection therewith, on the Effective Date and the Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and its Subsidiaries taken as a whole of the Borrower and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand-alone basis and the Borrower and the Guarantors taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and the Guarantors taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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 judgmentjudg- ment, fixed, contingent, matured, unmatured, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated and consolidating statements of financial condition of Furniture Brands and its Subsidiaries at December 31, 1995 and the related consolidated and consolidating statements of income and consolidated statements of cash flow and changes in shareholders' equity of Furniture Brands and its Subsidiaries for the Fiscal Year ended on such date, and furnished to the Lenders Banks prior to the Closing Date, Second Restatement Effective Date and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated and (iii) the unaudited pro forma consolidated balance sheet consolidating statements of the Company financial condition of Furniture Brands and its Subsidiaries as of the end of each fiscal quarter of Furniture Brands ended after December 31, 2003 1995, and after giving effect the related consolidated and consolidating statements of income and consolidated statements of cash flow of Furniture Brands and its Subsidiaries for such quarterly periods, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Second Restatement Effective Date, in each case case, present fairly in all material respects the financial condition of the Company Furniture Brands and its Subsidiaries (or Furniture Brands and its Restricted Subsidiaries, as the case may be) at the date of such statements of financial condition and the results of the operations of the Company Furniture Brands and its Subsidiaries (or Furniture Brands and its Restricted Subsidiaries as the case may be) for the periods covered thereby (orrespective Fiscal Year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsSince December 31, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1995, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrowers taken as a whole or of the Borrowers and their Restricted Subsidiaries taken as a whole, it being understood that any determination of whether such material adverse change has occurred shall take into account, inter alia, (x) any available indemnities and (y) the timing and likelihood of payment thereunder.
(ci) On and as of the Closing Second Restatement Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created (or maintained) by each party the Credit Parties in connection therewiththerewith (assuming the full utilization of all Revolving Loan Commitments on the Second Restatement Effective Date), (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower, individually, each Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole Subsidiaries, (each of the foregoing, as to itself or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its or their debts; (yb) each Solvent Entity has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity will have sufficient capital with which to conduct its businessbusinesses. For purposes of this Section 4.5(c7.05(c), "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, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2016 and the fiscal quarter ended March 31, 2017, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Date, (iii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby and (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetii) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), exceptsubject, in the case of the quarterly statementsfinancial statements not relating to a full fiscal year, to normal year-end audit adjustments and the absence of footnotes). Except as, and to the extent, disclosed in the Company’s Form 10-K for the omission of footnotesfiscal year ended December 31, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually2016, since December 31, 2016, nothing has occurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the aggregatelegality, would be material)validity or enforceability of the Loan Documents taken as a whole, (ii) the ability of the Company and the Designated Borrowers, taken as a whole, to repay the Obligations, or (iii) the rights and remedies of the Lenders or the Agents under the Loan Documents.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Committed Loans, the Term Loans, the 2020 Term Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithon the Closing Date, (x) the sum of the assets, at a fair valuationvaluation on a going concern basis, of each of the Company and its Subsidiaries (taken as a whole and whole) will exceed their respective debts, (y) the Company and the Subsidiary Guarantors its Subsidiaries (taken as a whole (each of the foregoing, a "SOLVENT ENTITY"whole) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature in the ordinary course of business and (z) each Solvent Entity will the Company and its Subsidiaries (taken as a whole) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "5.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the Company in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Borrower as at December 31, 2003, December 31, 2004 and September 30, 2005, and the related consolidated statements of operation, cash flows and (with respect to December 31, 2004), stockholders’ equity and comprehensive income of the Borrower for each fiscal year or fiscal quarter ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Borrower at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Borrower for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth therein)by the Borrower. Since December 31, except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2004, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, or financial condition of the Borrower and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness being incurred or assumed in connection therewithincurred, and to be incurred, and Liens created created, and to be created, by each party the Borrower and its Subsidiaries in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower and its Subsidiaries will exceed their debts; (b) the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (zc) each Solvent Entity the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its businesstheir businesses. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of Acquired Business at December 31, 2003 1996 and after giving effect December 31, 1997 and the related statements of consolidated income, consolidated cash flows and shareholders' equity of the Acquired Business for the respective fiscal year ended on such date, and furnished to the Transactions and Banks within 60 days following the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Restatement Effective Date in accordance with Section 13.22, in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been will be prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)applied.
(b) After giving effect The unaudited consolidated balance sheets of each of (x) Holdings and its Subsidiaries, (y) Adience and its Subsidiaries (excluding Newco and its Subsidiaries) and (z) Newco and its Subsidiaries, each as of April 30, 1997 and October 31, 1997, and the related unaudited consolidated and consolidating statements of income and retained earnings and statement of cash flows for the fiscal year or six-month period then ended, as the case may be, in each case furnished to the TransactionsBanks prior to the Restatement Effective Date pursuant to Section 8.01(b) or (c), since September 30as the case may be, 2003 of the Original Credit Agreement, present fairly the financial condition at the respective dates of such balance sheets and results of operations for the fiscal year or six-month period, as the case may be, ended on such dates, in each case prepared in accordance with the requirements of said Sections 8.01(b) and (as disclosed in c) of the Company's Quarterly Report Original Credit Agreement.
(c) Since October 31, 1997 (but for this purpose, assuming that the Transaction had been consummated on Form 10-Q for such quarterdate), there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Holdings, any Borrower, Holdings and its Subsidiaries taken as a whole or any Borrower and its Subsidiaries taken as a whole.
(ci) On and as of the Closing Restatement Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Holdings and its Subsidiaries taken as a whole and the Company each Borrower on a stand-alone basis will exceed their respective debts; (b) each of Holdings and the Subsidiary Guarantors its Subsidiaries taken as a whole (and each of the foregoing, Borrower on a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has stand-alone basis have not incurred and does do not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.do
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Trizec for the fiscal year ended on December 31, 2005, and the related consolidated statements of income, cash flows and shareholders’ equity of Trizec for the fiscal year ended on such date, a copy of each of which has been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries Trizec at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries Trizec for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP. Since December 31, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2005, there has been no change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of Trizec, the Borrowers or any of their respective Subsidiaries that has had, or could reasonably be expected to have, a Material Adverse ChangeEffect.
(cb) On and as of the Closing Effective Date, after giving effect to the Transactions and the other transactions contemplated in this Agreement and to all Indebtedness (including the Loans and the Guaranty) being incurred or assumed in connection therewith, and Liens created by each party in connection therewithany Credit Party, (xi) the sum of the assets, at a fair valuation, of each of Trizec, the Company Borrowers and its their respective Subsidiaries taken as a whole and of each of Trizec and each Borrower on a stand-alone basis will exceed their respective debts; (ii) Trizec, the Company Borrowers and the Subsidiary Guarantors their respective Subsidiaries taken as a whole (and each of the foregoing, Trizec and each Borrower on a "SOLVENT ENTITY"stand-alone basis have (or has) will exceed its debts; (y) each Solvent Entity has not incurred and does do (does) not intend to incur, nor believes and do (does) not believe that it they (it) will incur, debts beyond its their (its) ability to pay such debts as such debts mature; and (ziii) Trizec, the Borrowers and their respective Subsidiaries taken as a whole and each Solvent Entity of Trizec and each Borrower on a stand-alone basis will have sufficient capital with which to conduct its businesstheir (its) respective businesses. For purposes of this Section 4.5(c5.05(b), "“debt" ” means any liability on a claim, and "“claim" ” means (ix) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (iiy) 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) (i) The Audited Financial Statements furnished to unaudited cash flow statements for each Initial Hotel Property for each of (x) the Lenders prior to twelve week period ended on March 28, 1997 and (y) the Closing Datelatest fifty-three week period ended on January 3, 1997 and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated combined balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition March 28, 1997 and the results of the operations of the Company and its Subsidiaries pro forma combined cash flow statements for the periods covered thereby latest fifty-three week period ended January 3, 1997 (or, which statements have been prepared based on the assumption that (x) in the case of the Pro Forma Balance Sheetbalance sheet, presents a good faith estimate of that the consolidated pro forma financial condition of Initial Hotel Properties were acquired by the Company Borrower or its Subsidiaries on January 3, 1997 and (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheety) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly cash flow statements, for that the omission Initial Hotel Properties were acquired by the Borrower or its Subsidiaries on December 30, 1995), each present fairly the historical financial results of footnotes, the Initial Hotel Properties (and certain reclassifications and ordinary end the combined results which would have applied on the basis of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or the assumptions provided above). All information contained in the aggregate, would be material).
(b) After giving effect each Information Package furnished to the TransactionsBanks pursuant to Section 4.13 (with respect to the Initial Hotel Properties) or Section 7.11 (with respect to subsequently acquired Borrowing Base Properties) is, since September 30to the best knowledge of the Borrower, 2003 true and accurate in all material respects and not incomplete by omitting to state any fact necessary to make such information not misleading in any material respect. Since January 3, 1997 (as disclosed in but assuming that the Company's Quarterly Report Initial Hotel Properties had been acquired by the Borrower or its Subsidiaries on Form 10-Q for such quarterdate), there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Holdings, Holdings and its Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing DateEffective Date and on the date on which each Revolving Loan is made, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Revolving Loans) being incurred or assumed in connection therewith, and Liens created by each party Credit Party (other than Host Marriott) in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company Holdings and its Subsidiaries (taken as a whole whole) and the Company Borrower (on a stand-alone basis) will exceed their respective debts, (y) Holdings and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the Borrower (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will Holdings and its Subsidiaries (taken as a whole) and the Borrower (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 6.05(b) "debt" means any liability on a claim, and "claim" means (i) right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Borrower and its Subsidiaries for the Borrower’s fiscal year ended on December 31, 2006, and the consolidated balance sheet of the Borrower and its Subsidiaries for the Borrower’s fiscal quarter ended on September 30, 2007 and (in each case) the related consolidated statements of income, cash flows and shareholders’ equity of the Borrower and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Original Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Borrower and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), except, in the case of the aforementioned quarterly financial statements, for normal year-end audit adjustments and the omission absence of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After On and as of the Original Effective Date, and after giving effect to the TransactionsTransaction and to all Indebtedness (including the Revolving Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith, since September 30the Credit Parties, 2003 (taken as disclosed a whole, are not insolvent and will not be rendered insolvent by the incurrence of such indebtedness, and will not be left with unreasonably small capital with which to engage in the Company's Quarterly Report on Form 10-Q for their respective businesses and will not have incurred debts beyond their ability to pay such quarter), there has been no Material Adverse Changedebts as they mature.
(c) Except as fully disclosed in the financial statements referred to in Section 8.05(a), there were as of the Original Effective Date no liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to be material to the Borrower and its Subsidiaries taken as a whole. As of the Original Effective Date, the Credit Parties know of no reasonable basis for the assertion against it or any of its Subsidiaries of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements or referred to in Section 8.05(a) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) On and as of the Closing Original Effective Date, after giving effect the Projections which have been delivered to the Transactions Administrative Agent and the Lenders prior to all Indebtedness being incurred or assumed the Original Effective Date have been prepared in connection therewithgood faith and are based on reasonable assumptions, and Liens created by each party there are no statements or conclusions in connection therewith, (x) the sum any of the assetsProjections which are based upon or include information known to the Borrower to be misleading in any material respect or which fail to take into account material information known to the Borrower regarding the matters reported therein; it being recognized by the Lenders, at a fair valuationhowever, of each of that projections as to future events are not be viewed as facts and that actual results during the Company and its Subsidiaries taken as a whole and period or periods covered by the Company and Projections may differ from the Subsidiary Guarantors taken as a whole projections results.
(each of the foregoinge) Since September 30, 2007, no event has occurred or other circumstances arisen that has had, or could reasonably be expected to have, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements To the best knowledge of the REIT and the Borrower, the unaudited operating statements for each Borrowing Base Property for the six-month period ended June 30, 2002, copies of which have been delivered to the Banks, fairly and accurately present the financial results of such Borrowing Base Property for such period. All information contained in each Information Package furnished to the Lenders prior Banks pursuant to Section 4.13 (with respect to the Closing DateBorrowing Base Properties) is, to the best knowledge of the Borrower, true and accurate in all material respects and not incomplete by omitting to state any fact necessary to make such information not misleading in any material respect.
(ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the The unaudited pro forma consolidated balance sheet of the Company REIT and its Subsidiaries as of June 30, 2002 and the unaudited consolidated statement of operations of the REIT and its Subsidiaries for the six-month period ended June 30, 2002, copies of which were delivered to the Banks, 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 date thereof and the results of operations and cash flows (on a consolidated basis) of the entities described therein for the period then ended, subject to changes resulting from audit and normal year-end adjustments.
(iii) The audited consolidated balance sheet of the REIT and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions 2002 and the incurrence audited consolidated statement of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company REIT and its Subsidiaries for the periods covered thereby (orfiscal year then ended, copies of which were delivered to the Banks, were prepared in conformity with GAAP and fairly present, in all material respects, the case financial position (on a consolidated basis) of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma entities described in such financial condition of the Company (after giving effect to the Transactions statements as at the date thereof)), subject, in thereof and the case results of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements operations and cash flows (other than the aforesaid Pro Forma Balance Sheeton a consolidated basis) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, entities described therein for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)then ended.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing DateEffective Date and on the date on which each Loan is made, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company REIT and its Subsidiaries (taken as a whole whole) and the Company Borrower (on a stand-alone basis) will exceed their respective debts (with contingent liabilities being valued with respect to each such entity at the estimated amount for which such entity is reasonably likely to be liable), (y) the REIT and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the Borrower (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will the REIT and its Subsidiaries (taken as a whole) and the Borrower (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 6.05(b) "debt" means any liability on a claim, and "claim" means (i) right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Eldertrust)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma audited consolidated balance sheet sheets of the Company Holdings and its Subsidiaries as of December for the fiscal years ended on March 31, 2003 1999 and after giving effect to the Transactions March 31, 2000 and the incurrence related statements of all Indebtedness contemplated thereby as set forth income, cash flows and shareholders' equity of Holdings and its Subsidiaries for the fiscal years ended on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")such dates, in which annual financial statements have been examined by Deloitte & Touche LLP, certified public accountants, who delivered an unqualified opinion with respect thereto and copies of which have heretofore been delivered to each case Lender, present fairly in all material respects the financial condition position of the Company Holdings and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied. The pro forma consolidated financial statements of Holdings and its Subsidiaries as of March 31, consistently applied (other than as set forth therein), except2000, in each case after giving effect to the case of Holdings IPO, the quarterly statementsRepurchase and the Synthetic Lease Financing, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all copies of which are have been furnished to the Lenders prior to the Effective Date, present fairly in all material respects the pro forma consolidated financial position of a recurring nature Holdings and none its Subsidiaries as of which individuallyMarch 31, or in the aggregate, would be material).
(b) 2000. After giving effect to the TransactionsHoldings IPO, the Repurchase and the Synthetic Lease Financing, since September 30March 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2000, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or of Holdings and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Date, Effective Date and after giving effect to the Transactions Holdings IPO, the Repurchase and the Synthetic Lease Financing and to all Indebtedness (including any Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, therewith (xi) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and of Holdings and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yii) each Solvent Entity of the Borrower on a stand-alone basis and Holdings and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (ziii) each Solvent Entity of the Borrower on a stand alone basis and Holdings and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(b), "debt" means any liability on a claim, and "claim" means (iA) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (iiB) 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, disputed, undisputed, 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 Agreement (Universal Compression Holdings Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Borrower and its Subsidiaries as of for its fiscal years ended on December 31, 2003 2000 and after giving effect December 31, 2001, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for such fiscal years ended on such date, copies of which have been furnished to the Transactions and Lenders on or prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Effective Date, in each case present fairly in all material respects the consolidated financial condition position of the Company Borrower and its Subsidiaries at the date dates of such statements of financial condition balance sheet and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, consistently applied (other than except as set forth otherwise expressly noted therein). Since December 31, except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)2000, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Date, Effective Date and after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewiththereto, (xa) the sum of the assets, at a fair valuation, of each the Borrower on a stand-alone basis and of the Company Borrower and its Subsidiaries taken as a whole will exceed their respective debts; (b) the Borrower on a stand-alone basis and the Company Borrower and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "debt" means any liability the Borrower on a claim, stand-alone basis 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 Borrower and its
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (iA) The Audited Financial Statements furnished to audited consolidated year-end balance sheets of the Lenders prior to Company for each of the Closing Datefiscal years ended February 28, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date 1998 and (iii) the unaudited pro forma 1997 and related consolidated balance sheet statements of income, cash flow and shareholders' equity of the Company and its Subsidiaries for the fiscal years ended on such dates, copies of which are attached hereto as of December 31Schedule 4.1(h)(A) (collectively, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEETFinancial Statements"), in each case fairly present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date as of such statements of financial condition dates and the consolidated results of the operations of the Company and its Subsidiaries for such fiscal years. All of the periods covered thereby foregoing financial statements have been prepared (or, i) in accordance with GAAP (except as stated therein or in the case notes thereto) and (ii) from the books and records of the Pro Forma Balance SheetCompany, presents a good faith estimate of except that the consolidated pro forma unaudited financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal statements have no notes attached thereto and do not have year-end adjustments. All such financial statements adjustments (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be materialrecurring).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed . All properties used in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Changebusiness operations as of each Financial Statement date are reflected in the Financial Statements in accordance with and to the extent required by GAAP.
(cB) On and as of the Closing Date, Date and after giving effect to the Transactions Exchange, the Restructuring and to all Indebtedness (including under the Exchange Documents) being incurred or assumed in connection therewith, by the Company and Liens created by each party its Subsidiaries in connection therewith, (xi) the sum of the tangible and intangible assets, at a fair valuation, of each the Company and Aura Ceramics on a stand-alone basis and of the Company and its Subsidiaries taken as a whole will exceed their debts; (ii) the Company and Aura Ceramics on a stand-alone basis and the Company and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and (ziii) each Solvent Entity the Company and Aura Ceramics on a stand-alone basis and the Company and its Subsidiaries taken as a whole will have sufficient capital with which to conduct their businesses. The amount of Contingent Obligations at any time shall be computed as the amount that, in 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. A copy of the pro forma consolidated balance sheet of the Company after giving effect to the Exchange, the Restructuring and to all Indebtedness (including under the Exchange Documents) being incurred or assumed by the Company and its business. For purposes of this Section 4.5(cSubsidiaries in connection therewith is attached hereto as Schedule 4.1(h)(B) hereto.
(C) Except as fully disclosed in the Financial Statements and Schedule 4.1(h)(C), "debt" means there were as of the Closing Date no Indebtedness, liabilities or obligations with respect to the Company or any liability on a claimof its Subsidiaries of any nature whatsoever (whether absolute, and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixedaccrued, contingent, maturedunliquidated or otherwise) which, unmaturedeither individually or in the aggregate, legal, equitable, securedhave, or unsecured could reasonably be expected to have, a Material Adverse Effect. As of the Closing Date, the Company does not know of any basis for the assertion against it or any of its Subsidiaries of any Indebtedness, liability or obligation of any nature whatsoever that is not fully disclosed in the Financial Statements or Schedule 4.1(h)(C) which, either individually or in the aggregate, have, or could reasonably be expected to have, a Material Adverse Effect.
(iiD) right The projections delivered to an equitable remedy for breach of performance if such breach gives rise the Agent on the Closing Date have been prepared in good faith and are based on reasonable assumptions, and there are no statements or conclusions in the projections which are based upon or include information known to a paymentthe Company to be misleading in any material respect or which fail to take into account material information known to the Company regarding the matters reported therein. The Company believes that the projections are reasonable and attainable, whether it being recognized by the Funds, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecuredperiods covered by the projections may differ from the projected results and that the differences may be material.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Borrower and its Subsidiaries for the fiscal years ended on June 30, 1998, June 30, 1999 and June 30, 2000 and the interim nine-month period ended March 31, 2001, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower for the fiscal year or nine-month period ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Effective Date, present fairly in all material respects the consolidated financial position of the Borrower and its Subsidiaries at the dates of such balance sheets and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods covered thereby. All of the foregoing financial statements have been prepared in accordance with GAAP (iiexcept, in the case of the aforementioned interim financial statements, for normal year-end audit adjustments and the absence of footnotes). After giving effect to the Transaction (but for this purpose assuming the Transaction had occurred prior to June 30, 2000), since June 30, 2000 nothing has occurred which has had, or could reasonably be expected to have, a material adverse effect on the business, property, assets, liabilities (actual or contingent), operations or condition (financial or otherwise) of the Unaudited Financial Statements Borrower and its Subsidiaries taken as a whole.
(b) The consolidated pro forma balance sheet of the Borrower and its Subsidiaries at June 30, 2001 (calculated after giving effect to the Transaction, and assuming that the Transaction had occurred on such date), copies of which have been furnished to the Lenders prior to the Closing Date Effective Date, present fairly the pro forma financial position of the Borrower and (iii) its Subsidiaries, and the unaudited related pro forma consolidated balance sheet statements of income of the Company Borrower and its Subsidiaries as of December 31for the twelve-month period ended on June 30, 2003 and 2001 (calculated after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotesTransaction, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallyassuming that the Transaction had occurred on July 1, or in the aggregate, would be material2000).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, Effective Date and after giving effect to the Transactions Transaction and to all Indebtedness (including the Senior Subordinated Notes and the Loans (if any)) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yii) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated and (iii) the unaudited pro forma consolidated consolidating balance sheet of the Company and its Consolidated Subsidiaries as of at September 29, 1996, December 31, 2003 1993, December 31, 1994 and after giving effect December 31, 1995 and the related consolidated and consolidating statements of earnings and the related consolidated statements of cash flows and shareholders' equity of the Company and its Consolidated Subsidiaries for the nine-month period or fiscal years as the case may be, ended on such dates and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case Restatement Effective Date present fairly in all material respects the consolidated and consolidating financial condition of the Company and its Consolidated Subsidiaries at the date of such statements of financial condition balance sheet, and the consolidated and consolidating results of the operations and the consolidated cash flows and shareholders' equity of the Company and its Consolidated Subsidiaries for such nine-month period or fiscal year, as the case may be. All such financial statements have been prepared in accordance with generally accepted accounting principles and practices consistently applied. Since September 29, 1996 (but after giving effect to the Refinancing), there has been no material adverse change in the business, property, assets, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents taken as a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)whole.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Restatement Effective Date, after giving effect to the Transactions Refinancing and to all Indebtedness (including the Loans and assuming the full utilization of the Total Commitment) being incurred incurred, assumed or assumed in connection therewith, maintained and Liens created or maintained by each party Credit Party in connection therewith, (xa) the sum of the assets, at a fair valuation, of each Credit Party (including as assets the stock of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY"owned by such Credit Party) will exceed its debts; (yb) each Solvent Entity no Credit Party has not incurred and does not intend to incuror intends to, nor or believes that it will incurwill, incur debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), 7.05(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, disputed, undisputed, legal, equitable, secured, or unsecured 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended on December 31, 1997, and the related consolidated statements of income, cash flows and shareholders' equity of the Company and its Subsidiaries for the fiscal year ended on such date, copies of which have been furnished to the Lenders on or prior to the Closing Restatement Effective Date, (ii) present fairly in all material respects the Unaudited Financial Statements furnished to consolidated financial position of the Lenders prior to Company and its Subsidiaries at the Closing Date date of such balance sheet and (iii) the unaudited pro forma consolidated results of the operations of the Company and its Subsidiaries for the periods covered thereby. All of the foregoing financial statements have been prepared in accordance with generally accepted accounting principles consistently applied. The PRO FORMA consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 1997 and after giving effect to the Transactions and Restatement Effective Date, a copy of which has been furnished to the incurrence of all Indebtedness contemplated thereby as set forth Lenders on Schedule 4.12 (or prior to the "PRO FORMA BALANCE SHEET")Restatement Effective Date, in each case present presents fairly in all material respects the PRO FORMA consolidated financial condition position of the Company and its Subsidiaries at as of December 31, 1997. Since December 31, 1997, there has been no material adverse change in the date of such statements of business, operations, property, assets, liabilities, condition (financial condition and the results of the operations or otherwise) or prospects of the Company and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma Balance Sheet, presents taken as a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)whole.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, Restatement Effective Date and after giving effect to the Transactions and to all Indebtedness being incurred or assumed in connection therewith, and Liens created by each party in connection therewiththereto, (xa) the sum of the assets, at a fair valuation, of each Borrower on a stand-alone basis and of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity Borrower on a stand-alone basis and the Company and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity Borrower on a stand alone basis and the Company and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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 Agreement (Neff Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (a) (i) The Audited Financial Statements audited consolidated statements of financial condition of Holdings and its Subsidiaries at December 31, 1996, December 31, 1997 and December 31, 1998 and the related consolidated statements of income and cash flow and changes in shareholders' equity of Holdings and its Subsidiaries for the fiscal years ended on such dates, and furnished to the Lenders prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements audited consolidated balance sheet of Holdings and its Subsidiaries as of the end of the fiscal quarter of Holdings ended September 30, 1999, and the related consolidated statements of earnings, shareholder's equity and cash flows of Holdings and its Subsidiaries for such quarterly period, and furnished to the Lenders prior to the Closing Date and Initial Borrowing Date, (iii) the unaudited pro forma consolidated balance sheet of the Company Holdings and its Subsidiaries as of December the end of the fiscal month of Holdings ended October 31, 2003 1999 and the related consolidated statement of income of Holdings and its Subsidiaries for such monthly period and (iv) an unaudited PRO FORMA consolidated balance sheet of Holdings and its Subsidiaries as of the Initial Borrowing Date and, after giving effect to the Transactions Transaction and the incurrence of all Indebtedness (including the Loans, the Senior Subordinated Bridge Loans and the Mezzanine Subordinated Debt) contemplated thereby as set forth on Schedule 4.12 herein (the "PRO FORMA BALANCE SHEETBalance Sheet"), in each case present fairly in all material respects the financial condition of the Company Holdings and its Subsidiaries at the date of such statements of financial condition and the results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (or, in the case of the Pro Forma PRO FORMA Balance Sheet, presents a good faith estimate of the consolidated pro forma PRO FORMA financial condition of the Company Holdings (after giving effect to the Transactions Transaction at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma PRO FORMA Balance Sheet) have been prepared in accordance with GAAP, GAAP and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly and monthly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsTransaction, since September 30December 31, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1998, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole.
(c) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans, the Senior Subordinated Bridge Loans and the Mezzanine Subordinated Debt) being incurred or assumed in connection therewithassumed, and Liens created by each party Credit Party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company Borrower, individually, BFPH and its Subsidiaries taken as a whole, the U.K. Borrowers taken as a whole and the Company Holdings and the Subsidiary Guarantors its Subsidiaries taken as a whole (each of the foregoing, as to itself, as to itself and the other relevant Borrowers or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(c), "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.
Appears in 1 contract
Samples: Credit Agreement (Vertis Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Vanguard and its Subsidiaries for the fiscal years ended on June 30, 2002, June 30, 2003 and June 30, 2004 and the related consolidated statements of income, cash flows and shareholders' equity of Vanguard for the fiscal year ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Vanguard and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Vanguard and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP. After giving effect to the Transaction (but for this purpose assuming the Transaction had occurred prior to June 30, consistently applied (other than as set forth therein2004), exceptsince June 30, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of 2004 nothing has occurred which are of a recurring nature and none of which individuallyhas had, or in could reasonably be expected to have, a material adverse effect on the aggregatebusiness, would be material)assets, liabilities, operations or condition (financial or otherwise) of VHS Holdco I and its Subsidiaries taken as a whole.
(b) After VHS Holdco I has heretofore furnished to the Lenders its pro forma balance sheet for the fiscal year ended June 30, 2004 prepared giving effect to the TransactionsTransaction as if the Transaction had occurred on such date. Such pro forma consolidated balance sheet (i) has been prepared in good faith based on the assumptions believed by each Credit Agreement Party to have been reasonable at the time made and to be reasonable as of the Initial Borrowing Date (it being understood that such assumptions are based on good faith estimates with respect to certain items and that the actual amounts of such items on the Initial Borrowing Date are subject to variation and that purchase accounting will not have been applied), since September (ii) subject to the assumptions and qualifications described in the Offering Memorandum, accurately reflects all adjustments necessary to give effect to the Transaction and (iii) subject to the assumptions and qualifications described in the Offering Memorandum, presents fairly, in all material respects, the pro forma consolidated financial position of VHS Holdco I and its consolidated Subsidiaries as of June 30, 2003 (2004, as disclosed in if the Company's Quarterly Report Transaction had occurred on Form 10-Q for such quarter), there has been no Material Adverse Changedate.
(c) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xi) the sum of the assets, at a fair valuation, of each of the Company Borrowers on a stand alone basis, and of VHS Holdco I and its Subsidiaries taken as a whole whole, will exceed their debts; (ii) each of the Borrowers on a stand alone basis, and the Company VHS Holdco I and the Subsidiary Guarantors their Subsidiaries taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts maturebecome absolute and matured; and (ziii) each Solvent Entity of the Borrowers on a stand alone basis, and VHS Holdco I and its Subsidiaries taken as a whole, will have sufficient capital with which to conduct its their business. For purposes of this Section 4.5(c7.05(c), "debt" means any liability on a claim, and "claim" means (ix) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (iiy) 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, disputed, undisputed, 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
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Borrower and its Subsidiaries for the fiscal year and three month period ended on December 31, 1996 and March 31, 1997, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year or three month period, as the case may be, ended on such dates, copies of which have been furnished to the Lenders Banks on or prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Borrower and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth therein), except, in the case applied. The PRO FORMA consolidated balance sheet of the quarterly statements, for Borrower and its Subsidiaries as of the omission of footnotes, Effective Date and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After after giving effect to the TransactionsRefinancing, since September 30a copy of which has been furnished to the Banks on or prior to the Effective Date, 2003 (presents fairly in all material respects the PRO FORMA consolidated financial position of the Borrower and its Subsidiaries as disclosed in of the Company's Quarterly Report on Form 10-Q for such quarter)Effective Date. Since December 31, 1996, there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabil ities, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Date, Effective Date and after giving effect to the Transactions Refinancing and to all Indebtedness the Loans being incurred or assumed in connection therewith, and Liens created by each party in connection therewithon the Effective Date, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance perfor xxxxx 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, disputed, undisputed, 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 Agreement (Sitel Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements unaudited consolidated balance sheet of Holdings and its Subsidiaries as of June 30, 2010 and for the fiscal year ended on December 31, 2009, and the related consolidated statements of income, cash flows and shareholders’ equity of Holdings and its Subsidiaries for such fiscal year or fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Administrative Agent and the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Holdings and its Subsidiaries at the date dates of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Holdings and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, GAAP consistently applied applied.
(other than b) Each Credit Party has received reasonably equivalent value from the Lenders for the Liens granted by it on the Collateral to secure the Obligations.
(c) Except as set forth therein), except, fully disclosed in the case balance sheets delivered pursuant to Section 8.05(a) or as disclosed in public filings disclosed on or before the Effective Date, there were as of the quarterly statementsEffective Date no liabilities or obligations with respect to Holdings or any of its Subsidiaries of any nature whatsoever (whether absolute, for the omission of footnotesaccrued, contingent or otherwise and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individuallywhether or not due) which, either individually or in the aggregate, would be material)materially adverse to the Credit Parties, taken as a whole. As of the Effective Date neither Holdings nor the Borrower knows of any reasonable basis for the assertion against any Credit Party of any liability or obligation of any nature that is not fully disclosed (including, without limitation, as to the amount thereof) in the balance sheets delivered pursuant to Section 8.05(a) which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(cd) On and as of the Closing Effective Date, detailed projected consolidated financial statements of the Borrower for the five fiscal years ended after giving effect January 1, 2010 (the “Projections”) which have been delivered to the Transactions Administrative Agent and the Lenders prior to all Indebtedness being incurred or assumed the Effective Date were prepared in connection therewithgood faith and are based on reasonable assumptions, and Liens created by each party there are no statements or conclusions in connection therewith, (x) the sum any of the assetsProjections which are based upon or include information known to Holdings to be misleading in any material respect or which fail to take into account material information known to Holdings regarding the matters reported therein; it being recognized by the Lenders, at a fair valuationhowever, of each of that projections as to future events are not to be viewed as facts and that actual results during the Company period or periods covered by the Projections may differ from the projected results.
(e) Other than the Parent Bankruptcy Case and its Subsidiaries taken as a whole and otherwise disclosed in public filings made by the Company and Borrower or Parent on or prior to the Subsidiary Guarantors taken as a whole (each of the foregoingEffective Date, since June 30, 2010, no event has occurred or other circumstances arisen that has had, or could reasonably be expected to have, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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 unsecuredMaterial Adverse Effect.
Appears in 1 contract
Samples: Priority Credit Agreement (Trico Marine Services Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Borrower and its Subsidiaries at January 31, 1998 and January 30, 1999 and May 2, 1998 and May 1, 1999, and the consolidated statements of operations and cash flows of the Borrower and its Subsidiaries for the fiscal years ended February 1, 1997, January 31, 1998 and January 30, 1999 and fiscal quarters ended May 2, 1998 and May 1, 1999, copies of which have been furnished to the Lenders prior to the Closing Initial Borrowing Date, (ii) present fairly the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet financial position of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (orthereby. After giving effect to the Transaction, there has been no material adverse change in the case business, operations, property, assets, liabilities, financial condition or prospects of the Pro Forma Balance SheetBorrower or the Borrower and its Subsidiaries taken as a whole since January 30, presents a good faith estimate 1999.
(b) The pro forma consolidated balance sheet of the consolidated pro forma financial condition Borrower and its Subsidiaries as of the Company (May 1, 1999, after giving effect to the Transactions at Transaction, and the pro forma consolidated statements of operations of the Borrower and its subsidiaries for the fiscal year ended January 30, 1999 and the fiscal quarter ended May 1, 1999, giving effect to the Transaction as if the same had been consummated on such date thereof)), subject, (in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements balance sheets) or the first day of such period (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in the case of such statements of operations), copies of which have been furnished to the quarterly statementsLenders prior to the Effective Date, present fairly in all material respects the pro forma consolidated financial position of the Borrower and its Subsidiaries as of May 1, 1999 and the pro forma consolidated results of operations of the Borrower and its Subsidiaries for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material)periods covered thereby.
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(ci) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes that it will incur, incur debts beyond its their ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.and
Appears in 1 contract
Samples: Credit Agreement (Too Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Containerboard Group for the fiscal years ended on December 31, 1996, December 31, 1997 and December 31, 1998, respectively, and the related consolidated statements of income, cash flows and interdivision account of the Containerboard Group for the fiscal year ended on such dates, copies of which have been furnished to the Lenders prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries Containerboard Group at the date dates of such statements of financial condition balance sheets and the results of the operations of the Company and its Subsidiaries Containerboard Group for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPgenerally accepted accounting principles consistently applied.
(b) The unaudited PRO FORMA consolidated balance sheet and related statement of income of PCA and its Subsidiaries (including the Containerboard Business) as of December 31, consistently applied 1998 and for the fiscal year ended on such date, after giving effect to the Transaction, copies of which have been furnished to the Lenders prior to the Effective Date, present fairly in all material respects the PRO FORMA consolidated financial position of PCA and its Subsidiaries as at December 31, 1998, and the PRO FORMA consolidated results of operations of PCA and its Subsidiaries for the period covered thereby (other than as set forth therein)assuming the Contribution had occurred on December 31, except1998 (in the case of such balance sheet) and on January 1, 1998 (in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be materialrelated income statement).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Initial Borrowing Date, on a PRO FORMA basis after giving effect to the Transactions Transaction and all other transactions contemplated by the Documents and to all Indebtedness (including the Loans and the Senior Subordinated Notes) being incurred or assumed in connection therewithassumed, and Liens created by each party PCA Credit Party in connection therewith, with respect to each of PCA, individually, and PCA and its Subsidiaries taken as a whole, (x) the sum of the assets, at a fair valuation, of each of the Company PCA, individually, and PCA and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoingwhole, a "SOLVENT ENTITY") will exceed its (or their) debts; (y) each Solvent Entity it has (or they have) not incurred and does (or do) not intend to incur, nor believes (or believe) that it (or they) will incur, incur debts beyond its (or their) ability to pay such debts as such debts mature; and (z) each Solvent Entity it (or they) will have sufficient capital with which to conduct its (or their) business. For purposes of this Section 4.5(c7B.05(c), "debt" means any liability on a claim, claim and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Samples: Credit Agreement (Pca Valdosta Corp)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company at September 27, 1996 and its Subsidiaries the related statements of operations, cash flows and shareholders' equity of the Company for the fiscal year or other period ended on such date, as the case may be, and copies of December 31which have hereto been furnished to the Banks prior to the Restatement Effective Date which have been examined by Ernst & Young, 2003 independent certified public accountants, who delivered an unqualified opinion in respect thereto, and (ii) the pro forma (after giving effect to the Transactions Transaction, the related financing thereof and the incurrence other transactions contemplated hereby and thereby) balance sheet of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Company at February 21, in each case 1997, copies of which have heretofore been furnished to the Banks prior to the Restatement Effective Date, present fairly in all material respects the financial condition of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations and the cash flows and shareholders' equity of the Company and its Subsidiaries for such fiscal year or other period, as the periods covered thereby case may be (or, in the case of the Pro Forma Balance Sheetpro forma balance sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions Transaction, the related financing thereof and the other transactions contemplated hereby and thereby) at the date thereof)), subject, . All such financial statements have been prepared in accordance with generally accepted accounting principles and practices consistently applied (except as may be indicated in the case of Unaudited Financial Statements, notes thereto) subject to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAPSince September 27, consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter)1996, there has been no Material Adverse Changematerial adverse change in the business, property, assets, nature of assets, liabilities, condition (financial or otherwise) or prospects of the Company or of the Company and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Restatement Effective Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans and the Letters of Credit) being incurred, and to be incurred or assumed in connection therewith(and the use of proceeds thereof), and Liens created created, and to be created, by each party the Company in connection therewithwith the transactions contemplated hereby, (xi) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (y) each Solvent Entity has not incurred and does not intend to incur, nor believes that it will incur, debts beyond its ability to pay such debts as such debts mature; and (z) each Solvent Entity will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "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.will
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of Holdings and its Subsidiaries for the fiscal years ended on March 29, 1997 and March 28, 1998, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of Holdings and its Subsidiaries for the fiscal years ended on such dates, copies of which have been furnished to the Lenders Banks prior to the Closing Restatement Effective Date, (ii) present fairly in all material respects the Unaudited Financial Statements consolidated financial position of Holdings and its Subsidiaries at the date of such balance sheets and the consolidated results of the operations of Holdings and its Subsidiaries for the periods covered thereby. The balance sheets of Power Ten for the fiscal year and six-month period ended on September 30, 1997 and April 4, 1998, respectively, and the related statements of income, cash flows and shareholders' equity of Power Ten for the fiscal year or six-month period, as the case may be, ended on such dates, copies of which have been furnished to the Lenders Banks prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31Restatement Effective Date, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the financial condition position of the Company and its Subsidiaries Power Ten at the date of such statements of financial condition balance sheets and the results of the operations of the Company and its Subsidiaries Power Ten for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied except as disclosed in the notes thereto. The PRO FORMA consolidated financial statements of Holdings and its Subsidiaries as of March 28, 1998 (other than as set forth thereinor April 4, 1998, to the extent relating to Power Ten), exceptin each case after giving effect to the Transaction and the financing therefor, copies of which have been furnished to the Banks prior to the Restatement Effective Date, present fairly in all material respects the case PRO FORMA consolidated financial position of Holdings and its Subsidiaries as of such date and the quarterly statements, PRO FORMA consolidated results of operations of Holdings and its Subsidiaries for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) ended on such date. After giving effect to the TransactionsTransaction (but for this purpose assuming that the Transaction and the related financing had occurred prior to March 28, 1998), since September 30March 28, 2003 1998 and except as (as and to the extent) disclosed in writing to the Company's Quarterly Report Agent and the Banks prior to the Restatement Effective Date, nothing shall have occurred that has had, or could reasonably be expected to have, a material adverse effect on Form 10-Q for such quarter)the business, there has been no Material Adverse Changeoperations, property, assets, liabilities or condition (financial or otherwise) of Holdings and its Subsidiaries taken as a whole.
(cb) On and as of the Closing Date, Restatement Effective Date and after giving effect to the Transactions Transaction and to all Indebtedness (including any Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, therewith (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and of Holdings and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand-alone basis and Holdings and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity of the Borrower on a stand alone basis and Holdings and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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 Agreement (Power Ten)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (i) The Audited Financial Statements consolidated and consolidating statements of financial condition of the Borrower and its Subsidiaries at December 28, 1996 and the related consolidated statements of income and consolidated statements of cash flow and changes in shareholders' equity of the Borrower and its Subsidiaries for the Fiscal Year ended on such date, and furnished to the Lenders Banks prior to the Closing Date, Initial Borrowing Date and (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date consolidated and (iii) the unaudited pro forma consolidated balance sheet consolidating statements of financial condition of the Company Borrower and its Subsidiaries as of the end of each fiscal quarter of the Borrower ended after December 3128, 2003 1996, and after giving effect the related consolidated statements of income and consolidated statements of cash flow of the Borrower and its Subsidiaries for such quarterly periods, and furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Initial Borrowing Date, in each case case, present fairly in all material respects the financial condition of the Company Borrower and its Subsidiaries (or the Borrower and its Restricted Subsidiaries, as the case may be) at the date of such statements of financial condition and the results of the operations of the Company Borrower and its Subsidiaries (or the Borrower and its Restricted Subsidiaries as the case may be) for the periods covered thereby (orrespective Fiscal Year or fiscal quarter, in as the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company may be (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statementsunaudited financial statements, to normal year-end adjustments). All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles and practices consistently applied (other than as set forth therein)applied, except, in the case of the quarterly financial statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the TransactionsSince December 28, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), 1996 there has been no Material Adverse Changematerial adverse change in the business, operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
(ci) On and as of the Closing Initial Borrowing Date, after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created (or maintained) by each party the Credit Parties in connection therewiththerewith (assuming the full utilization of all Revolving Loan Commitments on the Initial Borrowing Date), (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower, individually, the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole Subsidiaries, (each of the foregoing, as to itself or as to itself and its Subsidiaries, a "SOLVENT ENTITYSolvent Entity") will exceed its or their debts; (yb) each Solvent Entity has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (zc) each Solvent Entity will have sufficient capital with which to conduct its businessbusinesses. For purposes of this Section 4.5(c7.05(c), "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, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Borrower and its Subsidiaries for the fiscal years ended October 31, 1997 and October 31, 1998, respectively, and the related consolidated statements of income, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the respective fiscal year ended on such dates, copies of which have been furnished to the Lenders Banks prior to the Closing Effective Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby (or, in the case thereby. All of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such foregoing historical financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, generally accepted accounting principles consistently applied (other than as set forth therein), except, in the case of the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).except as
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(c) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Transaction and to all Indebtedness (including any Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, therewith (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand-alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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 Agreement (Scot Inc)
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements consolidated balance sheets of the Company and its Subsidiaries for the fiscal year ended December 31, 2013 and the fiscal quarter ended March 31, 2014, and the related consolidated statements of income, cash flows and shareholders’ equity of such Persons for the fiscal year and fiscal quarter ended on such dates, as the case may be, copies of which have been furnished to the Lenders on or prior to the Closing Date, (iii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2003 and after giving effect to the Transactions and the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET"), in each case present fairly in all material respects the consolidated financial condition position of the Company and its Subsidiaries at the date of such statements of financial condition balance sheets and the consolidated results of the operations of the Company and its Subsidiaries such Persons for the periods covered thereby and (or, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof)), subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheetii) have been prepared in accordance with GAAP, GAAP consistently applied (other than as set forth therein), exceptsubject, in the case of the quarterly statementsfinancial statements not relating to a full fiscal year, for to normal year-end audit adjustments and the omission absence of footnotes). Except as, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).
(b) After giving effect to the Transactionsextent, since September 30, 2003 (as disclosed in the Company's Quarterly Report on ’s Form 10-Q K for such quarter)the fiscal year ended December 31, there 2013, since December 31, 2013, nothing has been no Material Adverse Changeoccurred that has had, or could reasonably be expected to have, a material adverse change in any of (i) the legality, validity or enforceability of the Loan Documents taken as a whole, (ii) the ability of the Company and the Designated Borrowers, taken as a whole, to repay the Obligations, or (iii) the rights and remedies of the Lenders or the Agents under the Loan Documents.
(cb) On and as of the Closing DateDate and on the date on which each Loan is made or each Letter of Credit is issued, on a Pro Forma Basis after giving effect to the Transactions and to all Indebtedness (including the Committed Loans, the Term Loans and the Letters of Credit) being incurred or assumed in connection therewith, and Liens created by each party in connection therewith, (x) the sum of the assets, at a fair valuation, of each of the Company and its Subsidiaries (taken as a whole whole) and the Company (on a stand-alone basis) will exceed their respective debts, (y) the Company and the Subsidiary Guarantors its Subsidiaries (taken as a whole whole) and the Company (each of the foregoing, on a "SOLVENT ENTITY"stand-alone basis) will exceed its debts; (y) each Solvent Entity has have not incurred and does do not intend to incur, nor believes and do not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; mature and (z) each Solvent Entity will the Company and its Subsidiaries (taken as a whole) and the Company (on a stand-alone basis) have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c), "5.05(b) “debt" ” means any liability on a claim, and "“claim" ” means (i) the right to payment, payment whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitablesecured or unsecured, securedin each case, or unsecured to the extent of the reasonably anticipated liability thereof, as determined by the Company in good faith or (ii) the absolute 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, disputed, undisputed, secured or unsecured.
Appears in 1 contract
Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc. (ia) The Audited Financial Statements furnished to the Lenders prior to the Closing Date, (ii) the Unaudited Financial Statements furnished to the Lenders prior to the Closing Date and (iii) the unaudited pro forma consolidated balance sheet of the Company Borrower and its Subsidiaries as of at December 31, 2003 1995 and after giving effect September 30, 1996 and the related consolidated statements of operations, cash flows and shareholders' equity of the Borrower and its Subsidiaries for the fiscal year and nine-month period ended on such date, as the case may be, copies of which have been furnished to the Transactions and Banks prior to the incurrence of all Indebtedness contemplated thereby as set forth on Schedule 4.12 (the "PRO FORMA BALANCE SHEET")Initial Borrowing Date, in each case present fairly in all material respects the financial condition position of the Company Borrower and its Subsidiaries at the date of such statements of financial condition balance sheets and the results of the operations of the Company Borrower and its Subsidiaries for the periods covered thereby thereby. The consolidated balance sheet of Red Lion and its Subsidiaries at December 31, 1995 and September 30, 1996 and the related consolidated statements of income, cash flows and shareholders' equity of Red Lion and its Subsidiaries for the fiscal year and nine- month period ended on such date, as the case may be, copies of which have been furnished to the Banks prior to the Initial Borrowing Date, present fairly the financial position of Red Lion and its Subsidiaries at the date of such balance sheets and the results of the operations of Red Lion and its Subsidiaries for the periods covered thereby. The pro forma consolidated balance sheet of the Borrower and its Subsidiaries (orincluding Red Lion and its Subsidiaries) at June 30, 1996 and the pro forma income statements of the Borrower and its Subsidiaries (including Red Lion and its Subsidiaries) for the periods ended December 31, 1995 and June 30, 1996, copies of which have been furnished to the Banks prior to the Initial Borrowing Date, present fairly the pro forma financial position of the Borrower and its Subsidiaries (including Red Lion and its Subsidiaries) at June 30, 1996 and the results of the operations of the Borrower and its Subsidiaries (including Red Lion and its Subsidiaries) for the periods ended December 31, 1995 and June 30, 1996 and, in the case of the Pro Forma Balance Sheet, presents a good faith estimate of the consolidated pro forma financial condition of the Company (after giving effect to the Transactions at the date thereof))income statements, subject, in the case of Unaudited Financial Statements, to normal year-end adjustments. All such financial statements (other than the aforesaid Pro Forma Balance Sheet) have been prepared in accordance with GAAP, consistently applied (other than as set forth therein), except, in on the case of assumption that the quarterly statements, for the omission of footnotes, and certain reclassifications and ordinary end of period adjustments and accruals (all of which are of a recurring nature and none of which individually, or in the aggregate, would be material).Transaction had
(b) After giving effect to the Transactions, since September 30, 2003 (as disclosed in the Company's Quarterly Report on Form 10-Q for such quarter), there has been no Material Adverse Change.
(ci) On and as of the Closing Date, Initial Borrowing Date and after giving effect to the Transactions Transaction and to all Indebtedness (including the Loans) being incurred or assumed in connection therewith, and Liens created by each party the Credit Parties in connection therewith, (xa) the sum of the assets, at a fair valuation, of each of the Company Borrower on a stand alone basis and of the Borrower and its Subsidiaries taken as a whole and the Company and the Subsidiary Guarantors taken as a whole (each of the foregoing, a "SOLVENT ENTITY") will exceed its debts; (yb) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole has not incurred and does not intend to incur, nor believes and does not believe that it they will incur, debts beyond its their ability to pay such debts as such debts mature; and and
(zc) each Solvent Entity of the Borrower on a stand alone basis and the Borrower and its Subsidiaries taken as a whole will have sufficient capital with which to conduct its business. For purposes of this Section 4.5(c7.05(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, disputed, undisputed, 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, disputed, undisputed, 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 Agreement (Doubletree Corp)
