Common use of Financial Statements; Financial Condition; Undisclosed Liabilities Clause in Contracts

Financial Statements; Financial Condition; Undisclosed Liabilities. (i) The audited consolidated balance sheets of the Borrower as at December 31, 2006, December 31, 2007 and December 31, 2008 and the unaudited consolidated balance sheets of the Borrower as at June 30, 2009 and the related consolidated statements of operations and of cash flows for the fiscal years or quarters, as the case may be, ended on such dates, reported on by and accompanied by, in the case of the annual financial statements, an unqualified report from PricewaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of the Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years or quarters, as the case may be, then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). (ii) The pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 2009 (after giving effect to the Transaction and the financing therefor), a copy of which has been furnished to the Lenders prior to the Initial Borrowing Date, presents a good faith estimate in all material respects of the pro forma consolidated financial position of the Borrower and its Subsidiaries as of such date (b) Since December 31, 2008, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect; provided that, for the purposes hereof to the extent (and only to the extent) that this representation is being made on the Initial Borrowing Date, the delivery of the appraisals pursuant to Section 5.12 shall be considered conclusive evidence of the absence of a material adverse effect resulting from clause (y) of the definition of “Material Adverse Effect”.

Financial Statements; Financial Condition; Undisclosed Liabilities. (ia) The audited consolidated balance sheets of the Borrower as at December 31, 2006, December 31, 2007 2001 and December 31, 2008 and the unaudited consolidated balance sheets of the Borrower as at June 30, 2009 2002 and the related consolidated statements of operations and of cash flows for the fiscal years or quarters, as the case may be, ended on such dates, reported on by and accompanied by, in the case of the annual financial statements, by an unqualified report from PricewaterhouseCoopers LLPDeloitte & Touche, present fairly in all material respects the consolidated financial condition of the Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years or quarters, as the case may be, then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). Neither the Borrower nor any of its Subsidiaries has any material guarantee obligations, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the financial statements referred to in the preceding sentence (it being understood that with respect to guarantee obligations, the underlying debt is so reflected). During the period from December 31, 2001 to and including the date hereof there has been no Collateral Disposition (as defined in each of the Existing Credit Agreements) by the Borrower or any of its Subsidiaries of any material part of its business or property, except for the disposition of the Vessel then known as the "Stavanger Prince" in November 2002. (iib) The pro forma consolidated balance sheet On and as of each of the Effective Date and the SPTL Initial Borrowing Date, the Projections which have been delivered to the Administrative Agent prior to the Effective Date (and attached hereto as Schedule XIII) have been prepared on a basis consistent with the financial statements referred to in Section 7.05(a), and are based on good faith estimates and assumptions believed by management of the Borrower to be reasonable as of the date of such Projections, and there are no statements or conclusions in any of the Projections 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. On the Effective Date and the SPTL Initial Borrowing Date, the Borrower believes that the Projections are reasonable and attainable, it being understood by the Lenders that projections as to future results should not be viewed as fact and that actual results may differ from those set forth in the Projections. (c) Except as fully disclosed in the financial statements and the notes related thereto delivered pursuant to Section 7.05(a), there were as of each of the Effective Date and the SPTL Initial Borrowing 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, would be materially adverse to the Borrower and its Subsidiaries taken as a whole. As of June 30, 2009 (after giving effect to each of the Transaction Effective Date and the financing therefor), a copy of which has been furnished to the Lenders prior to the SPTL Initial Borrowing Date, presents a good faith estimate in all material respects none of the pro forma consolidated Credit Parties knows of any basis for the assertion against it of any liability or obligation of any nature that is not fairly disclosed (including, without limitation, as to the amount thereof) in the financial position of statements and the notes related thereto delivered pursuant to Section 7.05(a) which, either individually or in the aggregate, could be materially adverse to the Borrower and its Subsidiaries taken as of such datea whole. (bd) Since December 31, 20082002, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect; provided that, for the purposes hereof to the extent (and only to the extent) that this representation is being made on the Initial Borrowing Date, the delivery of the appraisals pursuant to Section 5.12 shall be considered conclusive evidence of the absence of a material adverse effect resulting from clause (y) of the definition of “Material Adverse Effect”.

Financial Statements; Financial Condition; Undisclosed Liabilities. (ia) The audited consolidated balance sheets statements of the Borrower as financial condition of Holdings and its Subsidiaries at September 30, 2003 and at December 31, 2006, December 31, 2007 and December 31, 2008 and the unaudited consolidated balance sheets of the Borrower as at June 30, 2009 2003 and the related consolidated statements of operations income and of cash flows of Holdings and its Subsidiaries for the fiscal years year or quartersthree-month period, as the case may be, ended on such dates, reported on by and accompanied bywhich, in the case of the annual financial statements, an unqualified report from PricewaterhouseCoopers LLPhave been audited by Deloitte & Touche LLP and furnished to the Lenders prior to the Effective Date, present fairly (subject to normal year-end adjustments in all material respects the case of the December 31, 2003 financial statements) the consolidated financial condition of Holdings and its Subsidiaries at the Borrower as at date of such date, consolidated statements of financial condition and the consolidated results of its the operations of Holdings and its consolidated cash flows Subsidiaries for the respective fiscal years year or quartersthree-month period, as the case may be, then ended. All such consolidated financial statements, including the related schedules and notes thereto, statements have been prepared in accordance with GAAP applied generally accepted accounting principles and practices consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein)applied. (iib) The pro forma consolidated income statement and consolidated balance sheet sheet, in each case, of the Borrower Parent and its Subsidiaries as of June 30December 31, 2009 2003 (after giving effect to the Transaction and Transaction) (collectively, the financing therefor"Pro Forma Financial Statements"), a copy of which has heretofore been furnished to the Lenders prior to the Initial Borrowing Dateeach Lender, presents a good faith estimate in all material respects of the consolidated pro forma consolidated financial position condition of the Borrower Parent and its Subsidiaries as of such dateafter giving effect to the Transaction. (bc) Since December 31September 30, 20082003, nothing there has not occurred any condition or circumstance that has had or could reasonably be expected to have a Material Adverse Effect; provided that, for the purposes hereof to the extent . (d) On and only to the extent) that this representation is being made on as of the Initial Borrowing Date, on a pro forma basis after giving effect to the delivery Transaction and the transactions contemplated hereby and to all Indebtedness (including the Loans) being incurred or assumed on such date and Liens created by the Credit Parties in connection therewith, (x) the sum of the appraisals pursuant to Section 5.12 shall be considered conclusive evidence assets, at a fair valuation, of the absence Parent and its Subsidiaries (on a consolidated basis), the Borrower and its Subsidiaries (on a consolidated basis) and of the Borrower (on a material adverse effect resulting from clause stand-alone basis) will exceed their respective debts, (y) each of the definition Parent and its Subsidiaries (on a consolidated basis), the Borrower and its Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) have not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature and (z) each of “Material Adverse Effect”the Parent and its Subsidiaries (on a consolidated basis), the Borrower and its Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) has sufficient capital with which to conduct its business. For purposes of this Section 7.05(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 payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.

Financial Statements; Financial Condition; Undisclosed Liabilities. (ia) The audited consolidated balance sheets statements of the Borrower as at December 31, 2006, December 31, 2007 financial condition of Sunrise and December 31, 2008 and the unaudited consolidated balance sheets of the Borrower as its Subsidiaries at June 30, 2009 2000 and at September 30, 2000 and the related consolidated statements of operations income and of cash flows of Sunrise and its Subsidiaries for the fiscal years year or quartersthree-month period, as the case may be, ended on such datesdate, reported on by and accompanied byfurnished to the Banks prior to the Closing Date, present fairly (subject to normal year-end adjustments in the case of the annual September 30, 2000 financial statements, an unqualified report from PricewaterhouseCoopers LLP, present fairly in all material respects ) the consolidated financial condition of Sunrise and its Subsidiaries at the Borrower as at date of such date, consolidated statements of financial condition and the consolidated results of its the operations of Sunrise and its consolidated cash flows Subsidiaries for the respective fiscal years year or quartersthree-month period, as the case may be, then ended. All such consolidated financial statements, including the related schedules and notes thereto, statements have been prepared in accordance with GAAP applied generally accepted accounting principles and practices consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). (ii) applied. The pro forma consolidated balance sheet of the Borrower as of September 30, 2000, a copy of which has heretofore been furnished to each Bank, presents a good faith estimate of the consolidated pro forma financial condition of the Borrower after giving effect to the Transaction at the date thereof. Since June 30, 2000, there has been no material adverse change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole (it being understood and agreed that the consummation of the Restructuring in and of itself shall be deemed not to constitute such a change so long as (i) such Restructuring is completed within 30 months following the Closing Date, (ii) the Capital Expenditures made in connection therewith do not exceed $17,000,000 and (iii) the operating expenses incurred in connection therewith do not exceed $34,400,000). (b) On and as of June 30the Closing Date, 2009 (on a pro forma basis after giving effect to the Transaction and to all Indebtedness (including the financing therefor)Loans) being incurred or assumed on such date and Liens created by the Borrower and its Subsidiaries in connection therewith, a copy of which has been furnished to (x) the Lenders prior to the Initial Borrowing Date, presents a good faith estimate in all material respects sum of the pro forma consolidated financial position assets, at a fair valuation, of the Borrower and its Subsidiaries as of such date (bon a consolidated basis) Since December 31, 2008, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect; provided that, for the purposes hereof to the extent (and only to the extent) that this representation is being made on the Initial Borrowing Date, the delivery of the appraisals pursuant to Section 5.12 shall be considered conclusive evidence of the absence of Borrower (on a material adverse effect resulting from clause stand-alone basis) will exceed their respective debts, (y) each of the definition Borrower and its Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) have not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature and (z) each of “Material Adverse Effect”the Borrower and its Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) has sufficient capital with which to conduct its business. For purposes of this Section 5.05(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.

Financial Statements; Financial Condition; Undisclosed Liabilities. (ia) (I) The audited consolidated balance sheets of the Borrower as at Company for its fiscal years ended December 31, 2006, December 31, 2007 2013 and December 31, 2008 and the unaudited consolidated balance sheets of the Borrower as at June 30, 2009 2014 and the related consolidated statements of operations income and of cash flows and changes in shareholders’ equity of the Company for its fiscal years ended December 31, 2013 and December 31, 2014, copies of which were in each case furnished to the Lenders prior to the Effective Date, present fairly in all material respects the consolidated financial position of the Company and its Subsidiaries at the date of said financial statements and the results for the respective periods covered thereby; and (II) the unaudited consolidated balance sheet of the Company for its fiscal years or quartersquarter ended March 31, as 2015 and the case may be, related consolidated statements of income and cash flows of the Company for the three-month period ended on such datesdate, reported on by and accompanied by, in copies of which were furnished to the case of Lenders prior to the annual financial statements, an unqualified report from PricewaterhouseCoopers LLPEffective Date, present fairly in all material respects the consolidated financial condition of the Borrower Company and its Subsidiaries as at such date, the date of said financial statements and the consolidated results of its their operations and its consolidated cash flows for the respective fiscal years or quartersperiod covered thereby, as subject to normal year-end adjustments and the case may be, then endedabsence of footnotes. All such consolidated financial statements, including the related schedules and notes thereto, statements have been prepared in accordance with GAAP consistently applied consistently throughout the periods involved (except as approved set forth in the notes thereto or as otherwise disclosed in writing by the aforementioned firm Company to the Lenders) and subject, in the case of accountants the unaudited financial statements, to normal year-end audit adjustments and disclosed therein)the absence of footnotes. (iii) The pro forma consolidated balance sheet sum of the Borrower fair value of the assets, at a fair valuation, of the Company and its Subsidiaries (taken as of June 30a whole) will exceed their respective debts, 2009 (after giving effect to ii) the Transaction and the financing therefor), a copy of which has been furnished to the Lenders prior to the Initial Borrowing Date, presents a good faith estimate in all material respects sum of the pro forma consolidated financial position present fair saleable value of the Borrower assets of the Company and its Subsidiaries (taken as a whole) will exceed their respective debts, (iii) the Company and its Subsidiaries (taken as a whole) have not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature, and (iv) the Company and its Subsidiaries (taken as a whole) will have sufficient capital with which to conduct their respective businesses. For purposes of this Section 8.05(b), “debt” means any liability on a claim, and “claim” means right to payment, whether or not such date (b) Since December 31a right is reduced to judgment, 2008liquidated, nothing has occurred unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, 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 available at such time, represents the amount that has had or could can reasonably be expected to have a Material Adverse Effect; provided that, for the purposes hereof to the extent (and only to the extent) that this representation is being made on the Initial Borrowing Date, the delivery of the appraisals pursuant to Section 5.12 shall be considered conclusive evidence of the absence of a material adverse effect resulting from clause (y) of the definition of “Material Adverse Effect”become an actual or matured liability.

Financial Statements; Financial Condition; Undisclosed Liabilities. (ia) The audited consolidated balance sheets statements of the Borrower as at December 31, 2006, December 31, 2007 financial condition of Sunrise and December 31, 2008 and the unaudited consolidated balance sheets of the Borrower as its Subsidiaries at June 30, 2009 2000 and at September 30, 2000 and the related consolidated statements of operations income and of cash flows of Sunrise and its Subsidiaries for the fiscal years year or quartersthree-month period, as the case may be, ended on such datesdate, reported on by and accompanied byfurnished to the Banks prior to the Initial Borrowing Date, present fairly (subject to normal year-end adjustments in the case of the annual September 30, 2000 financial statements, an unqualified report from PricewaterhouseCoopers LLP, present fairly in all material respects ) the consolidated financial condition of Sunrise and its Subsidiaries at the Borrower as at date of such date, consolidated statements of financial condition and the consolidated results of its the operations of Sunrise and its consolidated cash flows Subsidiaries for the respective fiscal years year or quartersthree-month period, as the case may be, then ended. All such consolidated financial statements, including the related schedules and notes thereto, statements have been prepared in accordance with GAAP applied generally accepted accounting principles and practices consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). (ii) applied. The pro forma consolidated balance sheet of Holdings as of September 30, 2000, a copy of which has heretofore been furnished to each Bank, presents a good faith estimate of the Borrower consolidated pro forma financial condition of Holdings after giving effect to the Transaction at the date thereof. Since June 30, 2000, there has been no material adverse change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of Holdings and its Subsidiaries taken as a whole (it being understood and agreed that the consummation of the Restructuring in and of itself shall be deemed not to constitute such a change so long as (i) such Restructuring is completed within 30 months following the Initial Borrowing Date, (ii) the Capital Expenditures made in connection therewith do not exceed $17,000,000 and (iii) the operating expenses incurred in connection therewith do not exceed $34,400,000). (b) On and as of June 30the Initial Borrowing Date, 2009 (on a pro forma basis after giving effect to the Transaction and to all Indebtedness (including the financing thereforLoans) being incurred or assumed on such date and Liens created by the Credit Parties in connection therewith, (x) the sum of the assets, at a fair valuation, of Holdings and its Subsidiaries (on a consolidated basis), a copy of which has been furnished to the Lenders prior to the Initial Borrowing Date, presents a good faith estimate in all material respects of the pro forma consolidated financial position of the Borrower and its Subsidiaries as of such date (bon a consolidated basis) Since December 31, 2008, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect; provided that, for the purposes hereof to the extent (and only to the extent) that this representation is being made on the Initial Borrowing Date, the delivery of the appraisals pursuant to Section 5.12 shall be considered conclusive evidence of the absence of Borrower (on a material adverse effect resulting from clause stand-alone basis) will exceed their respective debts, (y) each of Holdings and its Subsidiaries (on a consolidated basis), the definition Borrower and its Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) have not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature and (z) each of “Material Adverse Effect”Holdings and its Subsidiaries (on a consolidated basis), the Borrower and its Subsidiaries (on a consolidated basis) and the Borrower (on a stand-alone basis) has sufficient capital with which to conduct its business. For purposes of this Section 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.