Common use of Solvency of the Surviving Corporation Clause in Contracts

Solvency of the Surviving Corporation. Immediately following the Effective Time and after giving effect to the Merger, and assuming the representations and warranties of the Company in ARTICLE IV are true and correct in all material respects, that the conditions to Closing set forth in ARTICLE VIII have been satisfied, and that any estimates, projections or forecasts of the Company provided to the Parent have been prepared in good faith based upon assumptions that continue to be reasonable as of the Closing, the Surviving Corporation will be Solvent. For purposes of this Agreement, “Solvent”, when used with respect to the Surviving Corporation, means that, as of any date of determination, (a) the Present Fair Salable Value of its assets will, as of such date, exceed its probable liabilities on existing debts as they become absolute and matured (including, in any event, payments that may become due under the debt instruments as a result of the Contemplated Transactions), (b) the Surviving Corporation will not have, as of such date, an unreasonably small amount of assets or capital for the business in which it is engaged or will be engaged, (c) the Surviving Corporation will be able to pay its debts as they become absolute and matured, in the ordinary course of business, (d) the sum of its debt does not exceed the fair value of its assets and (e) it does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they mature in the ordinary course of business. The term “Solvency” shall have a correlative meaning. No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions with the intent to hinder, delay or defraud either present or future creditors of the Surviving Corporation. For purposes of the definition of “Solvent,” “debt” means liability on a 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. “Present Fair Salable Value” means the amount that may be realized if the aggregate assets of the Surviving Corporation (including goodwill) are sold as an entirety with reasonable promptness in an arm’s length transaction under present conditions for the sale of comparable business enterprises.

Solvency of the Surviving Corporation. Immediately Not later than 30 days following the Effective Time execution of this Agreement, Parent shall cause to be delivered to the Company an opinion from Houlihan, Lokey, Hxxxxx & Zxxxx, or such other nationally recognized accounting or investment banking firm as the Company may reasonably approve, valuing the Company as a going-concern (including goodwill), on a pro forma basis, immediately after and after giving effect to the Mergertransactions contemplated hereby and by the Commitments, and assuming opining that, assuming, in each case, the representations transactions contemplated hereby and warranties of by the Commitments had been consummated as proposed, immediately after and giving effect to such transactions on a pro forma basis, (i) the fair value and present fair saleable value to the Company’s assets would exceed the Company’s stated liabilities and identified contingent liabilities; (ii) the Company in ARTICLE IV are true and correct in all material respects, that the conditions to Closing set forth in ARTICLE VIII have been satisfied, and that any estimates, projections or forecasts of the Company provided to the Parent have been prepared in good faith based upon assumptions that continue to be reasonable as of the Closing, the Surviving Corporation will be Solvent. For purposes of this Agreement, “Solvent”, when used with respect to the Surviving Corporation, means that, as of any date of determination, (a) the Present Fair Salable Value of its assets will, as of such date, exceed its probable liabilities on existing debts as they become absolute and matured (including, in any event, payments that may become due under the debt instruments as a result of the Contemplated Transactions), (b) the Surviving Corporation will not have, as of such date, an unreasonably small amount of assets or capital for the business in which it is engaged or will be engaged, (c) the Surviving Corporation will should be able to pay its debts as they become absolute and maturedmature; and (iii) the capital remaining in the Company after the transactions contemplated hereby would not be unreasonably small for the business in which the Company is engaged, as management has indicated it is now conducted and is proposed to be conducted by Parent following the consummation of such transactions, and otherwise in form and substance reasonably satisfactory to the Company, addressed to the Company Board, supporting the conclusion that, after giving effect to all of the transactions contemplated by this Agreement, each of Parent and the Surviving Corporation will be solvent (or the equivalent thereof, as determined in the reasonable discretion of the Company) (such opinion, the “Solvency Opinion”). Parent shall obtain a “bring down” of the Solvency Opinion dated as of the Closing Date, which opinion shall be in form and substance no less favorable to the Company than the Solvency Opinion, provided, that any assumptions contained in the Solvency Opinion as to which facts have been ascertained between the date of the original Solvency Opinion and the Closing Date shall be eliminated. Each of Parent and the Company shall, in connection therewith, use their commercially reasonable best efforts to (i) make available their respective officers, agents and other Representatives on a customary basis and upon reasonable notice and (ii) provide or make available such information concerning the ordinary course of business, (d) the sum of its debt does not exceed the fair value of its properties, contracts, assets and (e) it does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts liabilities of the Company as they mature in the ordinary course of business. The term “Solvency” shall have a correlative meaning. No transfer of property is being made and no obligation is being incurred may reasonably be requested in connection with the Contemplated Transactions with the intent to hinder, delay or defraud either present or future creditors delivering such a “bring down” of the Surviving CorporationSolvency Opinion. For purposes Following the Effective Time and until the earlier to occur of six (6) years thereafter or the expiration of the definition applicable statute of “Solvent,” “debt” means liability on a right limitations, Parent shall not take or fail to payment, whether take any action that if such action had been deemed to have been taken or not such a right is reduced failure to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured. “Present Fair Salable Value” means act had been deemed to have occurred immediately prior to the amount that may Effective Time would have caused the representations and warranties set forth in Section 5.12 hereof to be realized if the aggregate assets untrue as of the Surviving Corporation (including goodwill) date hereof or as of the Effective Time. The provisions of this Section 6.13 are sold as an entirety with reasonable promptness in an arm’s length transaction under present conditions intended to be for the sale benefit of, and will be enforceable by, each officer and director of comparable business enterprisesthe Company, each holder of Company Common Stock and each of their respective successors, heirs and personal representatives.

Solvency of the Surviving Corporation. Immediately following the Effective Time and after giving effect to the Merger, and assuming the representations and warranties of the Company in ARTICLE IV are true and correct in all material respects, that the conditions to Closing set forth in ARTICLE VIII have been satisfied, and that any estimates, projections or forecasts of the Company provided to the Parent have been prepared in good faith based upon assumptions that continue to be reasonable as of the Closing, the Surviving Corporation and its Subsidiaries on a consolidated basis will be Solvent. For purposes of this Agreement, “Solvent”, ” when used with respect to the Surviving CorporationCorporation and its Subsidiaries, means that, as of any date of determination, (a) the Present Fair Salable Value amount of the “fair saleable value” of the assets, on a going concern basis, of the Surviving Corporation and its assets Subsidiaries will, as of such date, exceed its (i) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws of the United States governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of the Surviving Corporation and its Subsidiaries on its existing debts (including contingent liabilities) as they such debts become absolute and matured (including, in any event, payments that may become due under the debt instruments as a result of the Contemplated Transactions)matured, (b) the Surviving Corporation and its Subsidiaries will not have, as of such date, an unreasonably small amount of assets or capital for the business operation of the businesses in which it is they are engaged or will proposed to be engagedengaged following such date, (c) the Surviving Corporation and its Subsidiaries will be able to pay its debts their aggregate liabilities, including contingent and other liabilities, as they become absolute mature, and matured, in the ordinary course of business, (d) the sum of its debt does not exceed the fair value of its assets Parent and (e) it does Merger Sub do not intend for the Surviving Corporation and its Subsidiaries to incur, or believe that it the Surviving Corporation and its Subsidiaries will incur, debts beyond its their ability to pay such debts as they mature in the ordinary course of businessdebts. The term “Solvency” shall have a correlative meaning. No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Surviving Corporation. For purposes of the definition of “Solvent,” “debt” means liability on a right to payment, whether Corporation or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured. “Present Fair Salable Value” means the amount that may be realized if the aggregate assets of the Surviving Corporation (including goodwill) are sold as an entirety with reasonable promptness in an arm’s length transaction under present conditions for the sale of comparable business enterprisesits Subsidiaries.

Solvency of the Surviving Corporation. Immediately following As of the Effective Time and Time, immediately after giving effect to the Mergertransactions contemplated by this Agreement and actions taken in connection with the financing of these transactions, and assuming (a) satisfaction of the conditions set forth in Section 7.1 and Section 7.2, (b) the accuracy in all material respects of the representations and warranties of the Company set forth in ARTICLE IV are true and correct Article 4 hereof (assuming accuracy in all material respects, that the conditions respects without regard to Closing any materiality or “Company Material Adverse Effect” qualification set forth in ARTICLE VIII have been satisfiedtherein), and (c) that any estimates, projections or forecasts of with respect to the Company and its Subsidiaries provided to by the Parent Company or any Company Representatives have been prepared in good faith and are based upon assumptions reasonable assumptions, and (d) that continue all financial information concerning the Company and its Subsidiaries provided to be reasonable as Parent by the Company or any Company Representative (whether before or after the date hereof) fairly presents in all material respects the consolidated financial condition of the ClosingCompany and its Subsidiaries as at the end of the periods covered thereby and the consolidated results of operations of the Company and its Subsidiaries for the periods covered thereby, the Surviving Corporation will shall be Solvent. For purposes of this Agreement, the Surviving Corporation will be deemed to be “Solvent”, when used with respect to the Surviving Corporation, means that” so long, as of any date of determination, : (a) each of the Present Fair Salable Value Surviving Corporation and its Subsidiaries will not have incurred, or be expected to incur, indebtedness (including contingent and other liabilities) beyond its ability to pay such indebtedness as it matures or becomes due, (b) the then present fair salable value of the assets of the Surviving Corporation and its assets willSubsidiaries, taken as a whole, exceeds, as of such date, exceed its probable the amount that will be required to pay (x) all liabilities on existing debts as they become absolute and matured (including, in any event, payments that may become due under the debt instruments as a result of the Contemplated Transactions), (b) the Surviving Corporation and its Subsidiaries (including the amount necessary to provide for contingent liabilities) and (y) all existing indebtedness of the Surviving Corporation and its Subsidiaries (including the amount necessary to provide for contingent liabilities) as such indebtedness becomes absolute and matures and (c) each of the Surviving Corporation and its Subsidiaries will not have, as of such date, have an unreasonably small amount of assets or capital for the business in which it is engaged or will be engaged, (c) the Surviving Corporation will be able to pay its debts as they become absolute and matured, in the ordinary course of carry on their respective business, either (di) the sum of its debt does not exceed the fair value of its assets and as presently conducted or (eii) it does not intend as intended by Parent to incur, or believe that it will incur, debts beyond its ability to pay such debts as they mature in the ordinary course of business. The term “Solvency” shall have a correlative meaningbe conducted. No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions transactions contemplated by this Agreement with the intent to hinder, delay or defraud either any present or future creditors of the Surviving Corporation. For purposes of the definition of “Solvent,” “debt” means liability on a 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. “Present Fair Salable Value” means the amount that may be realized if the aggregate assets of the Surviving Corporation (including goodwill) are sold as an entirety with reasonable promptness in an arm’s length transaction under present conditions for the sale of comparable business enterprisesand its Subsidiaries.

Solvency of the Surviving Corporation. Immediately following Assuming the accuracy of the Company’s representations and warranties set forth in Article V of this Agreement, the Company Disclosure Schedule and the Company SEC Documents, as of the Effective Time and of the Merger, after giving effect to the Merger, transactions contemplated by this Agreement and assuming actions taken in connection with the representations and warranties financing of the Company in ARTICLE IV are true and correct in all material respects, that the conditions to Closing set forth in ARTICLE VIII have been satisfied, and that any estimates, projections or forecasts of the Company provided to the Parent have been prepared in good faith based upon assumptions that continue to be reasonable as of the Closingthese transactions, the Surviving Corporation will shall be Solvent. For purposes of this Agreement, the Surviving Corporation will be deemed to be “Solvent”, when used with respect to the Surviving Corporation, means that” so long, as of any date of determination, : (a) each of the Present Fair Salable Value Surviving Corporation and its Subsidiaries will not have incurred, or be expected to incur, indebtedness (including contingent and other liabilities) beyond its ability to pay such indebtedness as it matures or becomes due, (b) the then present fair salable value of the assets of the Surviving Corporation and its assets willSubsidiaries, taken as a whole, exceeds, as of such date, exceed its probable the amount that will be required to pay (x) all liabilities on existing debts as they become absolute and matured (including, in any event, payments that may become due under the debt instruments as a result of the Contemplated Transactions), (b) the Surviving Corporation and its Subsidiaries (including the amount necessary to provide for contingent liabilities) and (y) all existing indebtedness of the Surviving Corporation and its Subsidiaries (including the amount necessary to provide for contingent liabilities) as such indebtedness becomes absolute and matures and (z) each of the Surviving Corporation and its Subsidiaries will not have, as of such date, have an unreasonably small amount of assets or capital for the business in which it is engaged or will be engaged, (c) the Surviving Corporation will be able to pay its debts as they become absolute and matured, in the ordinary course of carry on their respective business, either (di) the sum of its debt does not exceed the fair value of its assets and as presently conducted or (eii) it does not intend as intended by Parent to incur, or believe that it will incur, debts beyond its ability to pay such debts as they mature in the ordinary course of business. The term “Solvency” shall have a correlative meaningbe conducted. No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions transactions contemplated by this Agreement with the intent to hinder, delay or defraud either any present or future creditors of the Surviving Corporation. For purposes of the definition of “Solvent,” “debt” means liability on a 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. “Present Fair Salable Value” means the amount that may be realized if the aggregate assets of the Surviving Corporation (including goodwill) are sold as an entirety with reasonable promptness in an arm’s length transaction under present conditions for the sale of comparable business enterprisesand its Subsidiaries.