Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above. (b) Since October 1, 2011, there has not occurred any event, change or condition that has had, or could reasonably be expected to have, a Material Adverse Effect. (c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 2 contracts
Sources: Credit Agreement (Tyson Foods Inc), Credit Agreement (Tyson Foods Inc)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders Lender: (i) its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1September 27, 20112014, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and Closing Date, the portion other financial statements described in clause (i) of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Section 4.01(d) below. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1September 27, 20112014, there has not occurred any event, change or condition that has had, or could reasonably be expected to have, a Material Adverse Effect.
(c) The fair value of the assets of the Company Borrower and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company Borrower and its Subsidiaries and the Company Borrower and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 2 contracts
Sources: Term Loan Agreement (Tyson Foods Inc), Term Loan Agreement (Tyson Foods Inc)
Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows Audited Financial Statements (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries as of such dates and for such periods were prepared in accordance with GAAP consistently appliedapplied throughout the period covered thereby, subject except as otherwise expressly noted therein; (ii) fairly present the consolidated financial condition of the Borrower as of the date thereof and its consolidated results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof to the extent required by GAAP, including liabilities for taxes, material commitments and Indebtedness to the extent required by GAAP.
(b) The Unaudited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present the consolidated financial condition of the Borrower as of the date thereof and its consolidated results of operations for the period covered thereby, except as expressly noted therein, and subject, in the case of clauses (i) and (ii), to year-end audit adjustments adjustments, and the absence of footnotes (iii) show all material indebtedness and consolidated statements of stockholders’ equity in the case other liabilities, direct or contingent, of the statements referred Borrower and its consolidated Subsidiaries as of the date thereof to in clause (ii) abovethe extent required by GAAP, including liabilities for taxes, material commitments and Indebtedness to the extent required by GAAP.
(bc) Since October 1, 2011the date of the Audited Financial Statements, there has not occurred any eventbeen no event or circumstance, change either individually or condition in the aggregate, that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 2 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished to the Lenders (i) its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112019, reported on by PricewaterhouseCoopers LLP, independent public accountants, accountants and (ii) its unaudited consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2020. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject subject, in the case of clause (ii), to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovenormal year-end audit adjustments.
(b) Since October 1, 2011the Effective Date, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets Parent, OP LLC, the Borrower, any Restricted Subsidiary or any DevCo has on the date hereof any material Debt (including Disqualified Capital Stock) or any material off-balance sheet liabilities or partnerships, unusual forward or long-term commitments or unrealized or anticipated losses from any such unfavorable commitments that are, in the aggregate, material to the balance sheet and statements of income, stockholders equity and cash flows of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Parent, OP LLC, the total amount of liabilities (including contingent and unliquidated liabilities) of Borrower, the Company and its Restricted Subsidiaries and the Company DevCos on a consolidated basis and its Subsidiaries are able not reflected on such balance sheets and statements of income, stockholders equity and cash flows (including in the footnotes to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent financial statements) or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityotherwise permitted under Section 9.02.
Appears in 2 contracts
Sources: Credit Agreement (Oasis Petroleum Inc.), Credit Agreement (Oasis Petroleum Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its audited consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 2011, reported on by PricewaterhouseCoopers LLP▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, independent public accountants, accountants and (ii) its unaudited financial statements as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2012 (and comparable period for the prior fiscal year)2012, certified by its Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 31, 2011, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value As of the assets of date hereof, the Company Parent Guarantor, the Borrower and its their Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities have no material Debt (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Financial Statements, and unliquidated liabilities) of except those that, individually or in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do aggregate, could not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual have a Material Adverse Effect on the Borrower or matured liabilityits Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Diamondback Energy, Inc.), Credit Agreement (Diamondback Energy, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished delivered to the Lenders its Noteholders the following financial statements:
(i) the audited consolidated balance sheet and consolidated statements of incomeearnings (loss), stockholders’ equity ' deficit and cash flows (i) of the Holding Company and its Subsidiaries as of and for the fiscal year ended October 1December 31, 20112002, reported on accompanied by PricewaterhouseCoopers an opinion of Ernst & Young LLP, independent public accountants, and ; and
(ii) as the unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Credit Parties for the month most recently ended and for which monthly financial statements are available and for the fiscal quarter period ending as of the end of such month, and the portion related consolidated and consolidating balance sheets of the Credit Parties as at the end of such period, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year ended June 30(except that, 2012 (and comparable period for in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year). Such financial statements present fairly, in all material respects, the respective actual consolidated financial position and results of operations and cash flows of the Company and the Subsidiaries respective entities as of such respective dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovesuch unaudited statements.
(b) Since October 1December 31, 20112002, there has not occurred any eventbeen no change in the business, change assets, liabilities, operations or condition that has hadfinancial condition, or could of the Credit Parties which would reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets of Credit Parties has on the Company and its Subsidiaries (both Effective Date any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments in each case that are material, except as referred to or reflected or provided for in the balance sheets as at fair valuation and at present fair saleable value) is greater than December 31, 2002 referred to above or as otherwise expressly provided in this Agreement or the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, financial statements described 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 liabilitythis Section 4.4.
Appears in 2 contracts
Sources: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Inc), Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Holdings has heretofore furnished to the Lenders its Administrative Agent (i) the consolidated balance sheet of Holdings as of December 31, 2015, and the related consolidated statements of income, stockholders’ equity and cash flows (i) as of and Holdings for the fiscal year ended October 1December 31, 20112015, reported on audited by and accompanied by the opinion of PricewaterhouseCoopers LLP, independent registered public accountantsaccounting firm, and (ii) the unaudited consolidated balance sheet of Holdings as at the end of, and related consolidated statements of income, stockholders’ equity and for cash flows of Holdings for, the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 2016 (and comparable period periods for the prior fiscal year), certified by its senior vice president, business operations and finance. Such financial statements present fairly, in all material respects, the financial position and position, results of operations and cash flows of the Company Holdings and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of certain footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) [Reserved].
(c) Except as disclosed in the financial statements referred to above or the notes thereto, after giving effect to the Transactions, none of Holdings, the Borrower or any other Subsidiary has, as of the First Refinancing Facility Agreement Effective Date, any material contingent liabilities, unusual long-term commitments or material unrealized losses (other than the Obligations).
(d) Since October 1December 31, 20112015, there has not occurred any event, change been no event or condition that has hadresulted, or could reasonably be expected to haveresult, in a Material Adverse Effect.
(c) The fair value material adverse change in the business, assets, operations, liabilities or financial condition of Holdings, the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Borrower and the Company and its Subsidiaries are able to pay all their liabilities other Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitya whole.
Appears in 2 contracts
Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its (i) the audited consolidated balance sheet of the Borrower and consolidated statements of income, stockholders’ equity and cash flows (i) its Consolidated Subsidiaries as of and for the fiscal year ended October 1December 31, 20112020, reported on by PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountantsand the audited statements of operations, stockholders’ equity and (ii) cash flows of the Borrower and its Consolidated Subsidiaries as of and for the fiscal quarter year ended December 31, 2020, reported on by G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and (ii) the portion unaudited condensed consolidated balance sheets and related statements of operations and comprehensive income (loss) and stockholders’ equity and cash flows of the fiscal year ended Borrower and its Consolidated Subsidiaries as of June 30, 2012 (and comparable period for the prior fiscal year)2021. Such The financial statements described in the foregoing clause (i) and clause (ii) present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1December 31, 20112020, there has not occurred any been no event, change development or condition circumstance that has had, or could reasonably be expected to have, had a Material Adverse Effect.
(c) The fair value of Except as listed on Schedule 7.04(c) or as permitted under Section 9.02, no Credit Party has on the assets of date hereof after giving effect to the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of Transactions, any Material Indebtedness or any off-balance sheet liabilities, liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with for past due taxes, or any unusual forward or long-term commitments which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount whichare, in light of all the facts and circumstances existing at such timeaggregate, represents material to the amount that can reasonably Credit Parties taken as a whole or material with respect to the Borrower’s consolidated financial condition, required under GAAP to be expected shown but are not shown in the Borrower’s latest audited consolidated financial statements referred to become an actual or matured liabilityin Section 7.04(a)(i).
Appears in 2 contracts
Sources: Credit Agreement (Civitas Resources, Inc.), Credit Agreement (Civitas Resources, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Lufkin has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112010, reported on by PricewaterhouseCoopers LLP, Deloitte & Touche LLP or other independent public accountantsaccountants of nationally recognized standing, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2011, certified by Lufkin’s chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Lufkin and the its consolidated Subsidiaries as of such dates date and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (iiclause(ii) above.
(b) Since October 1, 2011the date of the financial statements most recently provided to the Administrative Agent pursuant to Section 5.01(a), there has not occurred any eventbeen no material adverse change in the business, change assets, operations, prospects or condition that has hadcondition, financial or could reasonably be expected to haveotherwise, of Lufkin and its consolidated Subsidiaries, taken as a Material Adverse Effectwhole.
(c) The fair value All financial statements required to be delivered to the Administrative Agent in accordance with this Agreement are or will be delivered (as applicable) true and correct, have been or will be (as applicable) prepared in accordance with GAAP (except for year-end adjustments and the absence of financial statement footnotes required by GAAP) and fairly and accurately present or will fairly and accurately present (as applicable) the financial position of Lufkin and its consolidated Subsidiaries as of such dates and the results of their operations for the respective periods indicated therein. Except as set forth on Schedule 6.01, after giving effect to the Transactions, none of Lufkin or its Subsidiaries has, as of the assets Effective Date, any material contingent liabilities or unrealized losses.
(d) Upon completion of the Company Acquisition, Newco and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities Buyer will be computed at the amount which, in light consolidated Subsidiaries of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liabilityLufkin.
Appears in 2 contracts
Sources: Credit Agreement (Lufkin Industries Inc), Credit Agreement (Lufkin Industries Inc)
Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for set forth in the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Registration Statement. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent and its Consolidated Restricted Subsidiaries and the Subsidiaries DevCos as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1December 31, 20112016, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Parent, the Borrower, the Restricted Subsidiaries and the DevCos has been conducted (whether by OPNA prior to the Effective Date or by the Credit Parties after the Effective Date) only in the ordinary course, in all material respects, consistent with past business practices.
(c) The fair value None of the assets Parent, the Borrower, the Restricted Subsidiaries or the DevCos has on the date hereof any material Debt (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are, in the aggregate, material to the balance sheet and statements of income, stockholders equity and cash flows of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Parent, the total amount of liabilities (including contingent and unliquidated liabilities) of Borrower, the Company and its Restricted Subsidiaries and the Company DevCos on a consolidated basis and its Subsidiaries are able to pay all their liabilities as not reflected on such liabilities mature balance sheets and do not have unreasonably small capital with which to carry on their business. In computing the amount statements of contingent income, stockholders equity and cash flows or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityotherwise permitted under Section 9.02.
Appears in 2 contracts
Sources: Credit Agreement (Oasis Midstream Partners LP), Credit Agreement (Oasis Midstream Partners LP)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished delivered to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter Administrative Agent and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal yearLenders financial information delivered pursuant to Section 6.01(l). Such When delivered, all financial statements present fairly, so delivered pursuant to Section 6.01(l) and Section 8.01 are complete and correct in all material respectsrespects and fairly present in all material respects on a consolidated basis the assets, the liabilities and financial position of the Parent and its Subsidiaries as at such dates, and the results of the operations and cash flows changes of financial position for the Company and the Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to then ended (other than customary year-end audit adjustments for unaudited financial statements and the absence of footnotes from unaudited financial statements), in each case, in accordance with GAAP. All such financial statements, including the related schedules and consolidated notes thereto, have been prepared in accordance with GAAP. Such financial statements of stockholders’ equity in the case show all Material Debt and other material liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date thereof, including material liabilities for taxes, material commitments, and Debt, in each case, to the extent required to be disclosed under GAAP. All pro forma financial statements referred and projections delivered pursuant to Section 6.01(l) or Section 8.01(f) were prepared in clause (ii) abovegood faith on the basis of the assumptions stated therein, which assumptions are believed to be reasonable in light of then existing conditions except that such financial projections and pro forma statements shall be subject to normal year end closing and audit adjustments.
(b) Since October 1May 8, 20112019, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect (other than as a result of the events leading up to, directly arising from, or direct effects of, the commencement or continuance of the Chapter 11 Cases) and (ii) the business of the Parent and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Neither the assets of Parent, the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Borrower nor any other Subsidiary has on the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityFinancial Statements.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Grizzly Energy, LLC), Credit Agreement (Grizzly Energy, LLC)
Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished in accordance with Section 8.01 to the Lenders its (i) the consolidated balance sheet sheets of each of the Parent and ARP, as of December 31, 2014, December 31, 2013 and December 31, 2012, and the related consolidated statements of operations, comprehensive income, stockholderspartners’ equity capital, and cash flows (i) as for each of and for the fiscal year three years in the period ended October 1December 31, 20112014, reported on certified by PricewaterhouseCoopers LLP, its independent public accountants, ; and (ii) the consolidated balance sheet of each of the Parent and ARP as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (2015 and comparable period the related consolidated statements of operations, comprehensive income, partners’ capital, and cash flows for the prior fiscal year)six-month period then ended, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the combined or consolidated, as applicable, financial position and results of operations and cash flows of each of the Company Parent and the its consolidated Subsidiaries and ARP and its consolidated Subsidiaries, as applicable, as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 31, 20112015, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Parent and the Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Neither the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities Parent nor any Restricted Subsidiary has any material Debt (including Disqualified Capital Stock) or any material contingent and unliquidated liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the financial statements referred to in Section 7.04(a) of or as disclosed in this Agreement (including the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitySchedules hereto).
Appears in 2 contracts
Sources: Credit Agreement (Atlas Energy Group, LLC), Credit Agreement (Atlas Energy Group, LLC)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its the Parent’s consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1Fiscal Year ending on December 31, 20112021, reported on by PricewaterhouseCoopers LLPPrice Waterhouse Coopers, independent public accountants, and (ii) the Parent’s consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter and three months ended March 31, 2022 prepared internally by the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Borrower. Such financial statements present statement presents fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the Subsidiaries its Consolidated Restricted as of such dates and for such periods.
(b) The most recent financial statements furnished pursuant to Section 8.01(a) and Section 8.01(b) present fairly, in all material respects, the financial condition of Borrower and its Consolidated Restricted Subsidiaries on a consolidated basis, as of the dates and for the periods set forth above in accordance with GAAP consistently appliedIFRS or GAAP, as applicable, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause unaudited quarterly financial statements.
(c) Since the later of (i) the date hereof and (ii) above.
(b) Since October 1date of the financial statements most recently delivered pursuant to Section 8.01(a), 2011and after giving effect to the Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Neither the Borrower nor any other Group Member has on the date of this Agreement any Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, or unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities Secured Obligations or as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityotherwise permitted hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Diversified Energy Co PLC), Revolving Credit Agreement (Diversified Energy Co PLC)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished delivered to the Lenders its the following financial statements:
(i) the audited consolidated balance sheet and consolidated statements of incomeearnings (loss), stockholders’ equity ' deficit and cash flows (i) of the Holding Company and its Subsidiaries as of and for the fiscal year ended October 1December 31, 20112002, reported on accompanied by PricewaterhouseCoopers an opinion of Ernst & Young LLP, independent public accountants, and ; and
(ii) as the unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Credit Parties for the month most recently ended and for which monthly financial statements are available and for the fiscal quarter period ending as of the end of such month, and the portion related consolidated and consolidating balance sheets of the Credit Parties as at the end of such period, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year ended June 30(except that, 2012 (and comparable period for in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year). Such financial statements present fairly, in all material respects, the respective actual consolidated financial position and results of operations and cash flows of the Company and the Subsidiaries respective entities as of such respective dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovesuch unaudited statements.
(b) Since October 1December 31, 20112002, there has not occurred any eventbeen no change in the business, change assets, liabilities, operations or condition that has hadfinancial condition, or could of the Credit Parties which would reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets of Credit Parties has on the Company and its Subsidiaries (both Effective Date any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments in each case that are material, except as referred to or reflected or provided for in the balance sheets as at fair valuation and at present fair saleable value) is greater than December 31, 2002 referred to above or as otherwise expressly provided in this Agreement or the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, financial statements described 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 liabilitythis Section 4.4.
Appears in 2 contracts
Sources: Credit Agreement (Affinity Group Inc), Credit Agreement (Affinity Group Holding, Inc.)
Financial Condition; No Material Adverse Change. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders' equity and cash flows as of and for the fiscal years ended December 31, 1997, December 31, 1998 and December 31, 1999, reported on by PricewaterhouseCoopers LLP, independent public accountants. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP.
(b) Since December 31, 1998, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.
(c) The Company has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ ' equity and cash flows (i) as of and for the fiscal year years ended October 1December 31, 20111997 and December 31, 1998, reported on by PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, accountants and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30December 31, 2012 (and comparable period for the prior fiscal year)1999, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries its consolidated subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(bd) Since October 1December 31, 20111998, there has not occurred any eventbeen no material adverse change in the business, change assets, operations or condition that has hadcondition, financial or could reasonably be expected to haveotherwise, a Material Adverse Effect.
(c) The fair value of the assets of the Company and its Subsidiaries subsidiaries, taken as a whole.
(both at fair valuation e) Except as disclosed in the financial statements referred to above or the notes thereto and at present fair saleable value) is greater than except for Disclosed Matters, after giving effect to the total amount of liabilities (including contingent Transactions and unliquidated liabilities) the Acquisition of the Company and Company, none of the Borrower or its Subsidiaries and has, as of the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of Effective Date, any material contingent liabilities, unusual long term commitments or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityunrealized losses.
Appears in 2 contracts
Sources: Credit Agreement (Pegasus Solutions Inc), Credit Agreement (Pegasus Systems Inc)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows changes in financial position (i) as of and for the fiscal year ended October 1December 31, 20111999, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter quarters and the portion related portions of the fiscal year ended March 31, 2000, June 30, 2012 (2000 and comparable period for the prior fiscal year)September 30, 2000, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows changes in financial position of the Company Borrower and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP as required to be applied in filings under the Federal securities laws and Mexican GAAP applied consistently applied(with a reconciliation between the two in the case of annual financial information), subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveadjustments.
(b) Since October 1Except as disclosed in the financial statements referred to above or the notes thereto or in the Information Memorandum, 2011and except for the Disclosed Matters, there has not occurred after giving effect to the Transactions, none of the Borrower or any eventof its Subsidiaries has, change as of the Restatement Effective Date, any material contingent liabilities, material liabilities for taxes, material unusual forward or condition that has hadmaterial long-term commitments or material unrealized or anticipated losses from any unfavorable commitments, except as referred to or could reasonably be expected to have, a Material Adverse Effectreflected or provided for in its balance sheets as of the dates specified in clause (a) of this Section.
(c) The fair value Since December 31, 1999, there has been no material adverse change in the business, assets, operations, prospects or condition, financial or otherwise, of the assets of the Company Borrower and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitya whole.
Appears in 2 contracts
Sources: Credit Agreement (Grupo Iusacell Celular Sa De Cv), Credit Agreement (Grupo Iusacell Sa De Cv)
Financial Condition; No Material Adverse Change. (a) The Company Parent Guarantor has heretofore furnished to the Lenders its audited consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112012, reported on by PricewaterhouseCoopers LLP▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, independent public accountants, accountants and (ii) its unaudited financial statements as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)2013, certified by its Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent Guarantor and the its Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 31, 20112012, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value As of the assets of date hereof, the Company Parent Guarantor, the Borrower and its their Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities have no material Debt (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Financial Statements, and unliquidated liabilities) of except those that, individually or in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do aggregate, could not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual have a Material Adverse Effect on the Borrower or matured liabilityits Subsidiaries.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as audited consolidated financial statements of RNRC and its Subsidiaries (including the Borrower) for the fiscal year ended October 1December 31, 20112004, reported on by PricewaterhouseCoopers LLP(ii) unaudited combined financial statements of RNRC and the Borrower and their Subsidiaries for the three fiscal quarters ending September 30, independent public accountants2005 and (iii) pro forma consolidated balance sheet for Parent and its Subsidiaries after giving effect to the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent. Such financial statements described in clauses (i) and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements above present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries such Persons as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the unaudited quarterly financial statements. Such financial statements referred to described in clause (iiiii) aboveabove present fairly, in all material respects, the financial position and results of operations and cash flows of such Persons as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since October 1the date of the last delivery of financial statements pursuant to Section 7.04(a) or Section 8.01, 2011, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of each Loan Party and each Subsidiary has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Except as set forth on Schedule 7.21, on the assets of the Company and its Subsidiaries most recent financial statement delivered pursuant to Section 7.04(a) or Section 8.01(a) or (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities b), or in a certificate delivered pursuant to Section 7.01(d), no Loan Party nor any Subsidiary has any Debt (including Disqualified Capital Stock) not permitted under Section 9.02, or any material contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their , off-balance sheet liabilities as such or partnerships, liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent for taxes, unusual forward or unliquidated liabilities at long-term commitments or unrealized or anticipated losses from any time, such liabilities will be computed at the amount which, 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 liabilityunfavorable commitments.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112016, reported on by PricewaterhouseCoopers ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2017, certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Restricted Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 31, 2011, 2016 (i) there has not occurred any been no event, change development or condition circumstance (other than the pendency of the Bankruptcy Proceedings) that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Neither the assets of Borrower nor any Restricted Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including contingent and unliquidated liabilitiesDisqualified Capital Stock) of or any material off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except for the Company and its Subsidiaries Indebtedness or as referred to or reflected or provided for in the Financial Statements or other written information provided by the Borrower to the Administrative Agent and the Company and its Subsidiaries are able Lenders prior to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitydate hereof.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished delivered to the Lenders its the following financial statements:
(i) the audited consolidated balance sheet and consolidated statements of incomeearnings (loss), stockholders’ equity deficit and cash flows (i) of the Holding Company and its Subsidiaries as of and for the fiscal year ended October 1December 31, 20112002, reported on accompanied by PricewaterhouseCoopers an opinion of Ernst & Young LLP, independent public accountants, and ; and
(ii) as the unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Credit Parties for the month most recently ended and for which monthly financial statements are available and for the fiscal quarter period ending as of the end of such month, and the portion related consolidated and consolidating balance sheets of the Credit Parties as at the end of such period, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year ended June 30(except that, 2012 (and comparable period for in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year). Such financial statements present fairly, in all material respects, the respective actual consolidated financial position and results of operations and cash flows of the Company and the Subsidiaries respective entities as of such respective dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovesuch unaudited statements.
(b) Since October 1December 31, 20112002, there has not occurred any eventbeen no change in the business, change assets, liabilities, operations or condition that has hadfinancial condition, or could of the Credit Parties which would reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets of Credit Parties has on the Company and its Subsidiaries (both Effective Date any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments in each case that are material, except as referred to or reflected or provided for in the balance sheets as at fair valuation and at present fair saleable value) is greater than December 31, 2002 referred to above or as otherwise expressly provided in this Agreement or the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, financial statements described 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 liabilitythis Section 4.4.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders Lender:
(i) a copy of its Form 10-K for the fiscal year ended December 31, 2001, containing the audited consolidated balance sheets of the Borrower and its consolidated Subsidiaries as of December 31, 2001 and December 31, 2000, and the related consolidated statements of income and stockholder's equity and cash flows for the periods then ended; and
(ii) the consolidating balance sheet sheets of the Borrower and consolidated the Subsidiaries and the related consolidating statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112001, reported on certified by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)a Financial Officer. Such financial statements present fairly, in all material respects, the consolidated financial position and results of operations and cash flows of the Company Borrower and the its Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the quarterly statements referred to above. Except as fully reflected in clause such financial statements, there are no material liabilities or obligations with respect to the Borrower or any Subsidiary of any nature whatsoever (iiwhether absolute, contingent or otherwise and whether or not due) abovewhich are required by GAAP to be disclosed in such financial statements.
(b) Since October 1December 31, 20112001, except for the Transactions, each of the Borrower and each Subsidiary has conducted its business only in the ordinary course and there has not occurred any event, change or condition that has had, or could reasonably be expected to have, a been no Material Adverse Effectchange.
(c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company U.S. Borrower has heretofore furnished to the Agents and to the Lenders (i) its consolidated balance sheet and as of December 31, 2008, (ii) its consolidated statements of income, stockholders’ equity and cash flows for the Fiscal Years ended December 31, 2007, and December 31, 2008, in the case of clauses (i) as of and for the fiscal year ended October 1, 2011(ii), reported on by PricewaterhouseCoopers Ernst & Young LLP, independent public accountants, and (iiiii) its consolidated balance sheet and combined statements of income, stockholders’ equity and cash flows as of and for the fiscal quarter nine months ended September 30, 2009 (and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal yearFiscal Year), as reviewed by Ernst & Young, LLP, independent public accountants, in accordance with Statement on Auditing Standards No. 100. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company U.S. Borrower and the its Subsidiaries as of such dates and for such periods in accordance with U.S. GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1Except as disclosed in the financial statements referred to in clause (a) above or the notes thereto, 2011after giving effect to the Transaction, there none of Holdings, the U.S. Borrower or any of their respective Subsidiaries has, as of the Borrowing Date, any material direct or contingent liabilities, unusual long term commitments or material unrealized losses.
(c) There has not occurred been any event, change development or condition circumstance that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse EffectEffect since July 14, 2009; provided that the filing of the Cases shall not in and of itself be deemed a Material Adverse Effect for purposes of this Section 8.04(c).
(cd) The fair value of Credit Parties have disclosed to the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Agents and the Company and its Subsidiaries are able Lenders all material assumptions with respect to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liability13-Week Budget.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Cooper-Standard Holdings Inc.)
Financial Condition; No Material Adverse Change. (a) The Company As of the Effective Date, the Borrower has heretofore furnished to the Lenders Administrative Agent its audited consolidated balance sheet and related consolidated statements of income, cash flows and stockholders’ equity and cash flows (i) as of and for the fiscal year years ended October 12014, 20112013 and 2012. As of the Effective Date, reported on by PricewaterhouseCoopers LLPthe Borrower has heretofore furnished to the Administrative Agent the unaudited consolidated balance sheet of the Borrower for each fiscal quarter ended after the last balance sheet delivered pursuant to the first sentence of this Section 3.04(a) and at least 45 days prior to the Effective Date and the related unaudited consolidated statements of income, independent public accountants, cash flows and (ii) as of and stockholders’ equity for the fiscal quarter and the portion period ended on such date. As of the fiscal year ended June 30Effective Date, 2012 (and comparable period for the prior fiscal year). Such other than as set forth on Schedule 3.04, such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited financial statements.
(b) [Reserved].
(c) Since October 1December 31, 20112014, there has not occurred any no event, change development or condition circumstance exists or has occurred that has had, had or could would reasonably be expected to havehave a material adverse effect on the business, property, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole.
(d) Neither the Borrower nor any of its Subsidiaries has any contingent liability or liability for Taxes, long term lease or unusual forward or long term commitment that is not reflected in the financial statements referenced in clause (a) above or the notes thereto and which in any such case would reasonably be expected to result in a Material Adverse Effect.
(c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished to the Lenders (i) its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112019, reported on by PricewaterhouseCoopers LLP, independent public accountants, accountants and (ii) its unaudited consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2020. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject subject, in the case of clause (ii), to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovenormal year-end audit adjustments.
(b) Since October 1, 2011the Effective Date, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets Parent, OP LLC, the Borrower or any Restricted Subsidiary has on the date hereof any material Debt (including Disqualified Capital Stock) or any material off-balance sheet liabilities or partnerships, unusual forward or long-term commitments or unrealized or anticipated losses from any such unfavorable commitments that are, in the aggregate, material to the balance sheet and statements of income, stockholders equity and cash flows of the Company Parent, OP LLC, the Borrower and its the Restricted Subsidiaries (both at fair valuation on a consolidated basis and at present fair saleable value) is greater than the total amount are not reflected on such balance sheets and statements of liabilities income, stockholders equity and cash flows (including contingent and unliquidated liabilitiesin the footnotes to such financial statements) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityotherwise permitted under Section 9.02.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company U.S. Borrower has heretofore furnished to the Agents and to the Lenders (i) its consolidated balance sheet and as of December 31, 2008, (ii) its consolidated statements of income, stockholders’ equity and cash flows for the Fiscal Years ended December 31, 2007, and December 31, 2008, in the case of clauses (i) as of and for the fiscal year ended October 1, 2011(ii), reported on by PricewaterhouseCoopers Ernst & Young LLP, independent public accountants, and (iiiii) its consolidated balance sheet and combined statements of income, stockholders’ equity and cash flows as of and for the fiscal quarter three months ended March 31, 2009 (and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal yearFiscal Year), as reviewed by Ernst & Young, LLP, independent public accountants, in accordance with Statement on Auditing Standards No. 100. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company U.S. Borrower and the its Subsidiaries as of such dates and for such periods in accordance with U.S. GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1Except as disclosed in the financial statements referred to in clause (a) above or the notes thereto, 2011after giving effect to the Transaction, there none of Holdings, the U.S. Borrower or any of their respective Subsidiaries has, as of the Initial Borrowing Date, any material direct or contingent liabilities, unusual long term commitments or material unrealized losses.
(c) There has not occurred been any event, change development or condition circumstance that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse EffectEffect since July 14, 2009; provided that the filing of the Cases shall not in and of itself be deemed a Material Adverse Effect for purposes of this Section 8.04(c).
(cd) The fair value of Credit Parties have disclosed to the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Agents and the Company and its Subsidiaries are able Lenders all material assumptions with respect to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liability13-Week Budget.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Historical Financial Statements. Such financial statements statements, together with notes thereto, present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Restricted Subsidiaries as of such dates and for such periods date in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) The most recent financial statements, together with notes thereto, furnished pursuant to Section 8.01(a) present fairly, in all material respects, the financial condition and results of operations and cash flows of the Borrower and its Consolidated Restricted Subsidiaries as of date thereof and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(c) Since October 1December 31, 20112017, and after giving effect to the Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could would reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Neither the Borrower nor any other Group Member has on the date of this Agreement any material Indebtedness (including Disqualified Capital Stock) or any material contingent liabilities, material off-balance sheet liabilities or partnerships, liabilities for taxes, or material and unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of Secured Obligations and those reflected or provided for in the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityHistorical Financial Statements.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Lilis Energy, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders (i) its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1April 30, 20112006, reported on by PricewaterhouseCoopers LLP, independent public accountants, accountants and (ii) its consolidated balance sheet and statements of income and cash flows as of and for the its fiscal quarter and the portion of the fiscal year ended June 30July 31, 2012 (and comparable period for the prior fiscal year)2006. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its consolidated Subsidiaries as of such dates date and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1The Borrower has heretofore furnished to the Lenders (i) the consolidated balance sheet and related statements of operations of Grupo Industrial Herradura, 2011S.A. de C.V. as of and for the fiscal year ended December 31, there has not occurred any event2005, change or condition that has hadreported on by Deloitte Touche Tohmatsu, or could reasonably be expected to haveindependent public accountants and (ii) the consolidated balance sheet and related statements of operations of Grupo Industrial Herradura, a Material Adverse EffectS.A. de C.V. as of and for the six-months ended June 30, 2006. To the knowledge of the Borrower, such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Grupo Industrial Herradura, S.A. de C.V. and its consolidated subsidiaries as of such date and for such periods in accordance with generally accepted accounting principles in Mexico.
(c) The fair value Since April 30, 2006 through the date of this Agreement, there has been no material adverse change in the business, assets, liabilities, condition (financial or otherwise) or material agreements of the assets Borrower and its Subsidiaries, taken as a whole.
(d) Since December 31, 2005 through the date of this Agreement, to the knowledge of the Company Borrower and its Subsidiaries except as otherwise set forth on Schedule 3.04, there has been no material adverse change in the business, assets, liabilities, condition (both at fair valuation and at present fair saleable valuefinancial or otherwise) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) or material agreements of the Acquired Company and its Subsidiaries and that, after giving effect to the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any timeTransactions, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can would reasonably be expected to become an actual result in a material adverse change in the business, assets, liabilities, condition (financial or matured liabilityotherwise) or material agreements of the Borrower and its Subsidiaries, taken as a whole.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112002, reported on by PricewaterhouseCoopers LLPKPMG, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its consolidated Subsidiaries as of such dates date and for such periods period in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of December 31, 20112002, there prepared giving effect to the Transactions and the Nashville Acquisition as if the Transactions had occurred on such date. Such pro forma consolidated balance sheet (i) has not occurred any eventbeen prepared in good faith based on the same assumptions used to prepare the pro forma financial statements included in the Information Memorandum (which assumptions are believed by the Borrower to be reasonable), change or condition that has had, or could reasonably be expected (ii) is based on the best information available to have, a Material Adverse Effectthe Borrower after due inquiry and (iii) accurately reflects all adjustments necessary to give effect to the Transactions and the Nashville Acquisition.
(c) The fair value Except as disclosed in the financial statements referred to above or the notes thereto or in the Information Memorandum and except for the Disclosed Matters, after giving effect to the Transactions, none of the assets Borrower or its Subsidiaries has, as of the Company Restatement Effective Date, any material contingent liabilities, unusual long-term commitments or material unrealized losses.
(d) Since December 31, 2002, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of the Borrower and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitya whole.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cumulus Media Inc)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112012, reported on by PricewaterhouseCoopers ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2012 (and comparable period for the prior fiscal year)2013, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the combined or consolidated, as applicable, financial position and results of operations and cash flows of the Company Borrower and the Subsidiaries its consolidated Subsidiaries, as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 31, 20112012, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and the Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices (provided that the consummation of the EP Acquisition is deemed to be consistent with past business practices).
(c) The fair value of Neither the assets of Borrower nor any Restricted Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any material contingent and unliquidated liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the financial statements referred to in Section 7.04(a) of or as disclosed in this Agreement (including the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitySchedules hereto).
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its (i) audited consolidated balance sheet and consolidated statements statement of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112008, all reported on by PricewaterhouseCoopers LLP, a firm of independent public accountants, accountants acceptable to the Administrative Agent and (ii) unaudited consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2009, certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1September 30, 20112009, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Except as set forth on Schedule 9.02 or in a certificate delivered pursuant to Section 8.01(d), neither the assets of Borrower nor any Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their , off-balance sheet liabilities as such or partnerships, liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent for taxes, unusual forward or unliquidated liabilities at long-term commitments or unrealized or anticipated losses from any time, such liabilities will be computed at the amount which, 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 liabilityunfavorable commitments.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished delivered to the Lenders its Noteholders the following financial statements:
(i) the audited consolidated balance sheet and consolidated statements of incomeearnings (loss), stockholders’ equity deficit and cash flows (i) of the Holding Company and its Subsidiaries as of and for the fiscal year ended October 1December 31, 20112002, reported on accompanied by PricewaterhouseCoopers an opinion of Ernst & Young LLP, independent public accountants, and ; and
(ii) as the unaudited consolidated and consolidating statements of income, retained earnings and cash flows of the Credit Parties for the month most recently ended and for which monthly financial statements are available and for the fiscal quarter period ending as of the end of such month, and the portion related consolidated and consolidating balance sheets of the Credit Parties as at the end of such period, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year ended June 30(except that, 2012 (and comparable period for in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year). Such financial statements present fairly, in all material respects, the respective actual consolidated financial position and results of operations and cash flows of the Company and the Subsidiaries respective entities as of such respective dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovesuch unaudited statements.
(b) Since October 1December 31, 20112002, there has not occurred any eventbeen no change in the business, change assets, liabilities, operations or condition that has hadfinancial condition, or could of the Credit Parties which would reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets of Credit Parties has on the Company and its Subsidiaries (both Effective Date any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments in each case that are material, except as referred to or reflected or provided for in the balance sheets as at fair valuation and at present fair saleable value) is greater than December 31, 2002 referred to above or as otherwise expressly provided in this Agreement or the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, financial statements described 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 liabilitythis Section 4.4.
Appears in 1 contract
Sources: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding Inc)
Financial Condition; No Material Adverse Change. (a) The Company Each of Parent and the Borrowers has heretofore furnished to the Lenders its consolidated balance sheet sheets and consolidated statements of income, stockholders’ ' equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20111997, reported on by PricewaterhouseCoopers LLPCoopers & ▇▇▇▇▇▇▇ L.L.P., independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2012 (and comparable period for the prior fiscal year)1998, certified by its Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company each of Parent and the Subsidiaries its consolidated subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1Parent has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of March 31, 20111998, there prepared giving effect to the Transactions as if the Transactions had occurred on such date. Such pro forma estimated consolidated balance sheet (i) has not been prepared in good faith based on the same assumptions used to prepare the pro forma financial statements included in the Information Memorandum (which assumptions are believed by Parent and the U.S. Borrower to be reasonable) and (ii) presents fairly, in all material respects, the pro forma financial position of Parent and its consolidated subsidiaries as of the Closing Date as if the Transactions had occurred any event, change or condition that has had, or could reasonably be expected to have, a Material Adverse Effecton such date.
(c) The fair value Except as disclosed in the financial statements referred to above or the notes thereto or in the Information Memorandum, after giving effect to the Transactions, none of Parent, the Borrowers or the Subsidiaries has, as of the assets Closing Date, any material contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since December 31, 1997, there has been no material adverse change in the business, assets, operations, properties or financial condition or, as of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Closing Date only, prospects of Parent, the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Borrowers and the Company and its Subsidiaries are able to pay all their liabilities Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitya whole.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Parent Guarantor has heretofore furnished to the Lenders its audited consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112012, reported on by PricewaterhouseCoopers LLP▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, independent public accountants, accountants and (ii) its unaudited financial statements as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)2013, certified by its Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent Guarantor and the its Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 31, 20112012, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect. 82 Section 7.03 amended by First Amendment.
(c) The fair value As of the assets of date hereof, the Company Parent Guarantor, the Borrower and its their Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities have no material Debt (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long- term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Financial Statements, and unliquidated liabilities) of except those that, individually or in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do aggregate, could not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual have a Material Adverse Effect on the Borrower or matured liabilityits Subsidiaries.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its audited consolidated balance sheet and consolidated statements statement of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112014, all reported on by PricewaterhouseCoopers LLP, a firm of independent public accountants, and (ii) as of and for accountants acceptable to the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Majority Lenders. Such audited financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1December 31, 20112014, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect (other than, in the case of a Material Adverse Effect under clause (a) or (b)(ii) of the definition thereof, any event, development or circumstances that has led to the Amendment to the extent disclosed to the Administrative Agent, the Lenders and/or their advisors) and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value Except for the Obligations, the Second Lien Term Loans, and as set forth on Schedule 9.02 as amended as of the assets of Amendment Effective Date and attached as Annex II hereto, neither the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Borrower nor any Restricted Subsidiary has on the total amount of liabilities Amendment Effective Date any material Debt (including Disqualified Capital Stock) or any material contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their , off-balance sheet liabilities as such or partnerships, material liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent for taxes, unusual forward or unliquidated liabilities at long-term commitments or unrealized or anticipated losses from any time, such liabilities will be computed at the amount which, 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 liabilityunfavorable commitments.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows as of and for the fiscal years ended July 31, 2021, July 31, 2022 and July 31, 2023, audited by and accompanied by an opinion of Deloitte & Touche LLP, independent public accountants (i) in each case, without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit); provided, for the avoidance of doubt, that the consolidated balance sheet and consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows as of and for the fiscal year ended October 1July 31, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter 2023 and the portion related opinion of Deloitte & Touche LLP will be deemed to have been furnished to the fiscal year ended June 30, 2012 (and comparable period for Lenders upon filing thereof by the prior fiscal year)Borrower or any Subsidiary with the SEC. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the Subsidiaries on a consolidated basis as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and .
(a) [reserved]
(b) Except as disclosed in the absence of footnotes and consolidated audited financial statements of stockholders’ equity in the case of the statements Borrower referred to in clause (iia) aboveabove or the notes thereto, none of the Borrower or any Subsidiary has, as of the Third A&R Effective Date, any material direct or contingent liabilities, unusual long-term commitments or unrealized losses.
(bc) Since October 1, 2011, there has not occurred any No event, change or condition has occurred that has had, or could would reasonably be expected to have, a Material Adverse Effect.
(c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 1 contract
Sources: Credit Agreement (Comtech Telecommunications Corp /De/)
Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished to the Lenders (i) its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112021, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) its unaudited consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) ▇▇▇▇▇▇▇’▇ consolidated balance sheet and the portion statements of income, stockholders equity and cash flows as of and for the fiscal year ended June 30December 31, 2012 2021, reported on by Deloitte & Touche LLP, independent public accountants and (iv) ▇▇▇▇▇▇▇’▇ unaudited consolidated balance sheet and comparable period statements of income, stockholders equity and cash flows as of and for the prior fiscal year)quarter ended March 31, 2022. Such The financial statements set forth in clauses (i) and (ii) of the preceding sentence present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject subject, in the case of clause (ii), to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovenormal year-end audit adjustments.
(b) Since October 1, 2011the Effective Date, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value None of the assets Restricted Parties has on the date hereof any material Debt (including Disqualified Capital Stock) or any material off-balance sheet liabilities or partnerships, unusual forward or long-term commitments or unrealized or anticipated losses from any such unfavorable commitments that are, in the aggregate, material to the balance sheet and statements of income, stockholders equity and cash flows of the Company Restricted Parties on a consolidated basis and its Subsidiaries (both at fair valuation are not reflected on such balance sheets and at present fair saleable value) is greater than the total amount statements of liabilities income, stockholders equity and cash flows (including contingent and unliquidated liabilitiesin the footnotes to such financial statements) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityotherwise permitted under Section 9.02.
Appears in 1 contract
Sources: Credit Agreement (Chord Energy Corp)
Financial Condition; No Material Adverse Change. (a) The Company Issuer has heretofore furnished to the Lenders Holders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112016, reported on by PricewaterhouseCoopers LLPBDO USA, LLP independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present statement presents fairly, in all material respects, the financial position and results of operations and cash flows of the Company Issuer and the its Consolidated Restricted Subsidiaries as of such dates and for such periods.
(b) The most recent financial statements furnished pursuant to Section 6.1(a), present fairly, in all material respects, the financial condition of Issuer and its Consolidated Restricted Subsidiaries on a consolidated basis, as of the dates and for the periods set forth above in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause unaudited quarterly financial statements.
(c) Since the later of (i) the date hereof and (ii) above.
(b) Since October 1date of the financial statements most recently delivered pursuant to Section 6.1(a), 2011and after giving effect to the Transactions and the Second Amendment Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Neither the Issuer nor any other Group Member has on the date of this Agreement any Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, or unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of the Company Obligations and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityFirst Lien Secured Obligations.
Appears in 1 contract
Sources: Note Purchase Agreement (Silverbow Resources, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished Reference is made to the Lenders its Parent’s audited consolidated balance sheet sheets and consolidated statements of income, stockholdersmembers’ equity and cash flows (i) as of and for the fiscal year ended October 1Fiscal Year ending December 31, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, 2021 and (ii) as of and for filed with the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)SEC. Such financial statements of Parent present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Parent and the Subsidiaries Note Parties as of such dates date and for such periods period in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) The Issuer has heretofore furnished to the Holders a reasonably satisfactory pro forma cash flow model, projections (including cash flow and outstanding Debt projections) and the Initial Financial Statements, of the Issuer and its Consolidated Restricted Subsidiaries as of the Closing Date, after giving effect to the Transactions contemplated to occur on the Closing Date and the purchase of the Notes on the Closing Date, certified by a Responsible Officer as having been prepared in good faith based upon reasonable assumptions, it being understood that such projections, including any revenues and volumes attributable to the Oil and Gas Properties of the Note Parties and production and cost estimates are necessarily based upon professional opinions, estimates and projections and that the Note Parties do not warrant that such opinions, estimates and projections will ultimately prove to have been accurate.
(c) Since October 1December 31, 20112021, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value of No Note Party has on the assets of the Company Closing Date and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities thereafter any Material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the financial statements referred to in Section 4.04(a) of or otherwise disclosed in writing to the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityAgent.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished in writing to the Lenders its consolidated Administrative Agent (i) a pro forma balance sheet and consolidated statements other financial information reflecting the financial position of income, stockholders’ equity and cash flows (i) the Loan Parties as of the Closing Date, immediately after giving effect to the Transactions contemplated to occur on the Closing Date, including the making of the Initial Loans hereunder and for the fiscal year ended October 1application of the proceeds thereof, 2011, reported on certified by PricewaterhouseCoopers LLP, independent public accountants, a Responsible Officer of Parent as having been prepared in good faith based upon reasonable assumptions and (ii) as any materials provided to the board of directors of Parent that reconcile 2023 year-to-date performance against Parent’s 2023 budget and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)projections. Such financial statements present information presents fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries Loan Parties as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveClosing Date.
(b) Parent has heretofore furnished in writing to the Administrative Agent the audited balance sheet and related statements of operations, shareholders’ equity and cash flows as of the end of and for fiscal year of Parent ending December 31, 2022.
(c) Since October 1December 31, 20112022, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Other than as set forth on Schedule 7.04, no Loan Party nor any Subsidiary of any Loan Party has, on the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities Closing Date, any Material Indebtedness (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their , off-balance sheet liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at partnerships, unusual forward or long-term commitments or unrealized or anticipated losses from any time, such liabilities will be computed at the amount which, 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 liabilityunfavorable commitments.
Appears in 1 contract
Sources: Senior Secured First Lien Term Loan Credit Agreement (Clean Energy Fuels Corp.)
Financial Condition; No Material Adverse Change. (a) The Company has Borrowers have heretofore furnished to the Lenders its FCX's consolidated balance sheet and consolidated statements of income, stockholders’ ' equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112000, reported on by PricewaterhouseCoopers ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)2001, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company FCX and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1Except as disclosed in the financial statements referred to above or the notes thereto or in the Confidential Information Materials and except for the Disclosed Matters, 2011after giving effect to the Transactions, there has not occurred neither Borrower nor any eventof the Restricted Subsidiaries has, change as of the Effective Date, any material contingent liabilities, unusual long-term commitments or condition that has had, or could reasonably be expected to have, a Material Adverse Effectunrealized losses.
(c) The fair value Since December 31, 2000, there has been no material adverse change in (a) the business, assets, operations, prospects or condition, financial or otherwise, of the assets of the Company FCX and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount Subsidiaries, taken as a whole, or of liabilities (including contingent and unliquidated liabilities) of the Company PTFI and its Subsidiaries and Subsidiaries, taken as a whole, including, without limitation, changes in ratings of debt of either Borrower that have a material adverse effect on such prospects, (b) the Company and ability of any Loan Party to perform any of its Subsidiaries are able obligations under any Loan Document or (c) the rights of or benefits available to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at Lenders under any time, such liabilities will be computed at the amount which, 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 liabilityLoan Document.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows on or prior to the Effective Date (i) as of and audited consolidated Financial Statements for the fiscal year ended October 1December 31, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, 2023 for the Borrower and its Consolidated Subsidiaries and (ii) as of and unaudited consolidated Financial Statements for the fiscal quarter and the portion of the fiscal year quarters ended March 31, 2024, June 30, 2012 (2024, and comparable period September 30, 2024 for the prior fiscal year)Borrower and its Consolidated Subsidiaries. Such financial statements Financial Statements present fairly, in all material respects, the financial position condition and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods periods, and such Financial Statements were prepared on a consolidated basis in accordance with GAAP consistently appliedapplied and do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements contained therein not misleading at such time, subject to normal year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovefootnotes.
(b) Since October 1December 31, 20112023, there has not occurred any event, change or condition that has had, or could reasonably be expected to have, a been no Material Adverse Effect.
(c) The fair value Neither any Credit Party nor any Subsidiary of any Credit Party has as of the assets of Effective Date, after giving effect to the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities Transactions, any Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for Taxes (other than those described in Section 5.09), unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that, in each case, would be required by GAAP to be reflected in audited financial statements, except as referred to or reflected or provided for in written information provided by the Company and its Subsidiaries Borrower to Administrative Agent and the Company and its Subsidiaries are able Lenders prior to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityEffective Date.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Berry Corp (Bry))
Financial Condition; No Material Adverse Change. (a) The Company has Borrowers have heretofore furnished to the Lenders its FCX’s consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112005, reported on by PricewaterhouseCoopers Ernst & Young LLP, independent registered public accountantsaccounting firm, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2012 (and comparable period for the prior fiscal year)2006, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company FCX and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) Since October 1Except as disclosed in the financial statements referred to above or the notes thereto or in the Confidential Information Materials and except for the Disclosed Matters, 2011after giving effect to the Transactions, there has not occurred neither Borrower nor any eventof the Restricted Subsidiaries has, change as of the Effective Date, any material contingent liabilities, unusual long-term commitments or condition that has had, or could reasonably be expected to have, a Material Adverse Effectunrealized losses.
(c) The fair value Since December 31, 2005, there has been no material adverse change in (a) the business, assets, operations, prospects or condition, financial or otherwise, of the assets of the Company FCX and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount Subsidiaries, taken as a whole, or of liabilities (including contingent and unliquidated liabilities) of the Company PTFI and its Subsidiaries and Subsidiaries, taken as a whole, including, without limitation, changes in ratings of debt of either Borrower that have a material adverse effect on such prospects, (b) the Company and ability of any Loan Party to perform any of its Subsidiaries are able obligations under any Loan Document or (c) the rights of or benefits available to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at Lenders under any time, such liabilities will be computed at the amount which, 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 liabilityLoan Document.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Financial Condition; No Material Adverse Change. (a) The Company has Credit Parties have heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows or made publicly available (i) the audited consolidated balance sheets of the Borrower and its consolidated Subsidiaries as of and for the fiscal year ended October 1ending December 31, 20112021 and the related audited consolidated statements of income, reported on by PricewaterhouseCoopers LLPcash flow, independent public accountants, and retained earnings of the Borrower and its consolidated Subsidiaries and (ii) the unaudited consolidated balance sheets of the Borrower and its consolidated Subsidiaries as of and for the fiscal quarter quarters ending March 31, 2022 and the portion of the fiscal year ended June 30, 2012 (2022 and comparable period for the prior fiscal year)related unaudited consolidated statements of income, cash flow, and retained earnings of the Borrower and its consolidated Subsidiaries. Such The financial statements described above present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated GAAP. The financial statements of stockholders’ equity described above have been prepared in the case of the statements referred to in clause (ii) abovegood faith based upon reasonable assumptions.
(b) Since October 1December 31, 20112021, there has not occurred any no event, change development or condition circumstance that has had, or could reasonably be expected to have, cause a Material Adverse EffectEffect has occurred.
(c) The fair value Except as listed on Schedule 7.04(c), neither the Borrower nor any of its Restricted Subsidiaries has on the assets of date hereof after giving effect to the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities Transactions, any Debt (including contingent and unliquidated Disqualified Capital Stock) or any material off-balance sheet liabilities or partnership liabilities) of , material liabilities for past due taxes, or any unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Company and its Subsidiaries Financial Statements, and the Company other written information provided by the Borrower to Administrative Agent and its Subsidiaries are able the Lenders prior to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitydate hereof.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its (i) audited consolidated balance sheet and consolidated statements statement of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112008, all reported on by PricewaterhouseCoopers LLP, a firm of independent public accountants, accountants acceptable to the Administrative Agent and (ii) unaudited consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)2009, certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1June 30, 20112009, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Except as set forth on Schedule 7.21 or in a certificate delivered pursuant to Section 8.01(d), neither the assets of Borrower nor any Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their , off-balance sheet liabilities as such or partnerships, liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent for taxes, unusual forward or unliquidated liabilities at long-term commitments or unrealized or anticipated losses from any time, such liabilities will be computed at the amount which, 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 liabilityunfavorable commitments.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company has Borrowers have heretofore furnished to the Lenders its consolidated Lender a pro forma balance sheet as of the Effective Date, and such other supporting financial information as the Lender has reasonably requested, and such balance sheet and consolidated other information does not contain any material misstatement of fact or omit to state any material fact necessary to make the statements of incometherein, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion in light of the fiscal year ended June 30circumstances under which they were made, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovenot materially misleading.
(b) Since October 1the date of the last delivery of financial statements pursuant to Section 8.01, 2011, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could would reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of each Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value Except as set forth on Section 7.19, on the most recent financial statement of the assets Borrowers delivered pursuant to Section 8.01(a) or (b), or in a certificate delivered pursuant to Section 8.01(d), neither the Borrowers nor any Subsidiary has any material Debt (other than the Obligations) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments.
(d) Except as set forth on Schedule 7.04, there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Company Borrowers, threatened in writing against or affecting the Borrowers or any Subsidiary (i) that is not fully covered by insurance (except for normal deductibles) and its Subsidiaries as to which there is a reasonable possibility of an adverse determination that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (both at fair valuation and at present fair saleable valueii) is greater than that involve any Loan Document or the total amount of liabilities Transactions.
(including contingent and unliquidated liabilitiese) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities Except as such liabilities mature and do could not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become have a Material Adverse Effect (or with respect to (iii), (iv) and (v) below, where the failure to take such actions could not be reasonably expected to have a Material Adverse Effect) and to the Borrowers’ actual knowledge:
(i) neither any Property of a Borrower or any Subsidiary nor the operations conducted thereon violate any order or requirement of any court or Governmental Authority or any Environmental Laws.
(ii) no Property of a Borrower or any Subsidiary nor the operations currently conducted thereon or, to the knowledge of the Borrowers, by any prior owner or operator of such Property or operation, are in violation of or subject to any existing, pending or threatened action, suit, investigation, inquiry or proceeding by or before any court or Governmental Authority or to any remedial obligations under Environmental Laws.
(iii) all notices, permits, licenses, exemptions, approvals or similar authorizations, if any, required to be obtained or filed in connection with the operation or use of any and all Property of a Borrower and each Subsidiary, including, without limitation, past or present treatment, storage, disposal or release of a hazardous substance, oil and gas waste or solid waste into the environment, have been duly obtained or filed, and the Borrowers and each Subsidiary are in compliance with the terms and conditions of all such notices, permits, licenses and similar authorizations.
(iv) to the knowledge of the Borrowers, all hazardous substances, solid waste and oil and gas waste, if any, generated at any and all Property of the Borrowers or any Subsidiary have in the past been transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an actual imminent and substantial endangerment to public health or matured liabilitywelfare or the environment, and all such transport carriers and treatment and disposal facilities have been and are operating in compliance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment, and are not the subject of any existing, pending or threatened action, investigation or inquiry by any Governmental Authority in connection with any Environmental Laws.
(v) the Borrowers have taken all steps reasonably necessary to determine and has determined that no oil, hazardous substances, solid waste or oil and gas waste, have been disposed of or otherwise released and there has been no threatened release of any oil, hazardous substances, solid waste or oil and gas waste on or to any Property of a Borrower or any Subsidiary except in compliance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment.
(vi) to the extent applicable, all Property of a Borrower and each Subsidiary currently satisfies all design, operation, and equipment requirements imposed by OPA, and the Borrowers do not have any reason to believe that such Property, to the extent subject to OPA, will not be able to maintain compliance with OPA requirements during the term of this Agreement.
(vii) to the knowledge of the Borrowers, neither a Borrower nor any Subsidiary has any known contingent liability or Remedial Work in connection with any release or threatened release of any oil, hazardous substance, solid waste or oil and gas waste into the environment.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its the Parent’s consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1Fiscal Year ending on December 31, 20112023, reported on by PricewaterhouseCoopers LLPPrice Waterhouse Coopers, independent public accountants, and (ii) the Parent’s consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter and the portion of the fiscal year nine months ended June September 30, 2012 (and comparable period for 2024 prepared internally by the prior fiscal year)Borrower. Such financial statements present statement presents fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Restricted Subsidiaries as of such dates and for such periods.
(b) The most recent financial statements furnished pursuant to Section 8.01(a) and Section 8.01(b) present fairly, in all material respects, the financial condition of Borrower and its Consolidated Restricted Subsidiaries on a consolidated basis, as of the dates and for the periods set forth above in accordance with GAAP consistently appliedIFRS or GAAP, as applicable, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause unaudited quarterly financial statements.
(c) Since the later of (i) the date hereof and (ii) above.
(b) Since October 1date of the financial statements most recently delivered pursuant to Section 8.01(a), 2011and after giving effect to the Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Neither the Borrower nor any other Group Member has on the date of this Agreement any Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, or unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities Secured Obligations or as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityotherwise permitted hereunder.
Appears in 1 contract
Sources: Revolving Credit Agreement (Diversified Energy Co PLC)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders (i) its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112010, reported on by PricewaterhouseCoopers LLPMalin, ▇▇▇▇▇▇▇▇ & Company, LLP or other independent public accountants, and (ii) its consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal quarter ending March 31, June 30 and the portion September 30, 2011, certified by its chief financial officer and (iii) a pro forma consolidated balance sheet as of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Effective Date. Such The financial statements described in clause (i), (ii) and (iii) of the preceding sentence present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, except as therein provided, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) abovesuch unaudited quarterly financial statements.
(b) Since October 1December 31, 20112010, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Neither the assets of Borrower nor any Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Company and its Subsidiaries and Financial Statements or disclosed in any Schedules provided for herein prior to the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityEffective Date.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its the consolidated balance sheet of Holdings and consolidated statements of incomeoperations, stockholders’ equity and cash flows (i) as of and for each of the fiscal year years ended October 1June 30, 2009, June 30, 2010 and December 31, 2011, reported on by PricewaterhouseCoopers KPMG LLP, independent public accountantsaccountants certified by its chief financial officer. Except as otherwise expressly noted therein, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Holdings, the Company Borrower and the Restricted Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject .
(b) The Borrower has heretofore furnished to year-end audit adjustments the Lenders (i) the unaudited consolidated balance sheets of Holdings and the absence of footnotes and consolidated related statements of income, stockholders’ equity in and cash flows as of and for the case fiscal quarter ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the unaudited consolidated balance sheets of BKW and related statements of income, stockholders’ equity and cash flows as of and for the fiscal quarter ended June 30, 2012 and (iii) with respect to the consolidated financial statements referred provided pursuant to in clause (ii) above, consolidating information that explains in reasonable detail the differences between the information related to BKW, on the one hand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand.
(bc) Since October 1Except as disclosed in the financial statements referred to above or the notes thereto and except for the Disclosed Matters, 2011after giving effect to the Transactions, there has not occurred none of Holdings, the Borrower or the Subsidiaries has, as of the Closing Date, any material contingent liabilities, unusual long-term commitments or unrealized losses, in each case outside the ordinary course of business.
(d) No event, change or condition has occurred that has had, or could reasonably be expected to have, a Material Adverse Effect.
(c) The fair value material adverse effect on the business, operations or financial condition of Holdings, the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Borrower and the Company and its Subsidiaries are able to pay all their liabilities Restricted Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any timea whole, such liabilities will be computed at the amount whichsince December 31, 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 liability2011.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Issuer has heretofore furnished to the Lenders HoldersPurchasers its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112016, reported on by PricewaterhouseCoopers LLPBDO USA, LLP independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present statement presents fairly, in all material respects, the financial position and results of operations and cash flows of the Company Issuer and the its Consolidated Restricted Subsidiaries as of such dates and for such periods.
(b) The most recent financial statements furnished pursuant to Section 6.1(a), present fairly, in all material respects, the financial condition of Issuer and its Consolidated Restricted Subsidiaries on a consolidated basis, as of the dates and for the periods set forth above in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause unaudited quarterly financial statements.
(c) Since the later of (i) the date hereof and (ii) above.
(b) Since October 1date of the financial statements most recently delivered pursuant to Section 6.1(a), 2011and after giving effect to the Transactions and the Second Amendment Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Neither the Issuer nor any other Group Member has on the date of this Agreement any Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, or unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of the Company Obligations and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityFirst Lien Secured Obligations.
Appears in 1 contract
Sources: Note Purchase Agreement (Silverbow Resources, Inc.)
Financial Condition; No Material Adverse Change. (ai) The Company Each of Aurora and the Issuer has heretofore furnished to the Lenders its consolidated Purchasers the financial statements (including profit and loss statements and statistical data) of Aurora for the years ended December 31, 2001, December 31, 2002 and December, 2003 and tax returns for the calendar years 1998, 1999, 2000, 2001, 2002 and 2003 and the balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) Issuer as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year2004, attached hereto as Schedule 4.1(d)(i). Such financial statements present and other information is accurate in all material respects as of the dates and for such periods set forth therein and presents fairly, in all material respects, the financial position condition and results of operations and cash flows of the Company and the Subsidiaries Persons reflected therein on a consolidated basis as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause periods.
(ii) aboveSince the formation of Aurora or the Issuer, as applicable (a) there has been no material adverse change in the business, property, operations, prospects or financial condition of Aurora, the Issuer, or the Issuer and its Subsidiaries, taken as a whole, as applicable and (b) no Restricted Payment or investment (other than a Permitted Investment) has been, directly or indirectly, declared, ordered, paid or made. Each of the Issuer, Aurora and its Subsidiaries is Solvent.
(biii) Since October 1Each of the Issuer and Aurora has heretofore furnished to the Purchasers the projections referred to on Schedule 4.1(d)(iii) hereto, 2011which projections were prepared in good faith, there are based upon assumptions that the Issuer and Aurora believe are reasonable and, to the best of the Issuer’s and Aurora’s knowledge, take into account all material information regarding the matters set forth therein, but excluding items which affect the economy generally.
(iv) Except as set forth in the financial and other information referenced in this Section 4.1(d), none of the Issuer, Aurora or any Subsidiaries has not occurred any eventliabilities or obligations of any nature (whether accrued, change absolute, contingent or condition that has hadotherwise) required by GAAP to be set forth on a consolidated balance sheet of Issuer, Aurora or any of its Subsidiaries or in the notes thereto or which, individually or in the aggregate, could reasonably be expected to have, result in a Material Adverse EffectChange.
(c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its Administrative Agent (i) the consolidated balance sheet and consolidated statements of income, stockholdersmembers’ equity and cash flows (i) of Forest as of and for the fiscal year ended October 1December 31, 20112013, reported on by Ernst & Young LLP, independent public accountants and (ii) the consolidated balance sheet and statements of income, members’ equity and cash flows of Sabine as of and for the fiscal year ended December 31, 2013, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries applicable entities as of such dates date and for such periods period in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1December 31, 20112013, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(c) The fair value of Other than this Agreement, the assets of Existing Second Lien Facility and the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Permitted Notes, neither the total amount of liabilities Borrower nor any Restricted Subsidiary has on the Closing Date, after giving effect to the Transactions, any Material Indebtedness (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities Financial Statements or as such liabilities mature and do not have unreasonably small capital with which to carry disclosed on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitySchedule 7.04.
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its (i) consolidated balance sheet sheets of the Borrower as at December 31, 2012, and consolidated December 31, 2011 and related statements of income, stockholders’ equity and cash flows (i) as of and the Borrower for the fiscal year years ended October 1at December 31, 2012, and December 31, 2011, reported on audited by PricewaterhouseCoopers LLPand accompanied by the opinion of Pricewaterhouse Coopers, L.L.P., independent registered public accountants, accounting firm and (ii) an unaudited consolidated balance sheet of the Borrower as at the end of, and related statements of income and for cash flows of the Borrower for, the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2012 2013 (and comparable period for the prior fiscal year), certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and position, results of operations and cash flows of the Company Borrower and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end (A) normal year‑end audit adjustments and the absence of certain footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above, and (B) adjustments and changes to give effect to the adoption by the Borrower of ▇▇▇▇-to-Market Pension Accounting.
(b) Since October 1December 31, 20112012, there has not occurred any event, change been no event or condition that has hadresulted, or could reasonably be expected to haveresult, in a Material Adverse Effect.
material adverse change in the business, assets, operations, performance or condition (c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilitiesfinancial or otherwise) of the Company and its Subsidiaries Borrower and the Company and its Subsidiaries are able to pay all their liabilities Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitya whole.
Appears in 1 contract
Sources: Credit Agreement (NCR Corp)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)Historical Financial Statements. Such financial statements statements, together with notes thereto, present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods date in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) The most recent financial statements, together with notes thereto, furnished pursuant to Section 8.01(a) present fairly, in all material respects, the financial condition and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries as of date thereof and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(c) Since October 1the Petition Date, 2011and after giving effect to the Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could would reasonably be expected to have, have a Material Adverse Effect.
(cd) The fair value Neither the Borrower nor any other Group Member has on the Interim Facility Effective Date any material Indebtedness (including Disqualified Capital Stock) or any material contingent liabilities, material off-balance sheet liabilities or partnerships, liabilities for taxes, or material and unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Secured Obligations and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityPre-Petition Obligations.
Appears in 1 contract
Sources: Senior Secured Super Priority Debtor in Possession Credit Agreement (Lilis Energy, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders (i) its audited consolidated balance sheet and related consolidated statements of income, stockholdersshareowners’ equity investment and cash flows (i) as of and for the fiscal year years ended October 1December 31, 20112008, December 31, 2007 and December 31, 2006, reported on by PricewaterhouseCoopers Ernst & Young LLP, independent registered public accountantsaccounting firm, without qualification and (ii) its unaudited consolidated balance sheet and related unaudited consolidated statements of income and cash flows as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2009, certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries Borrower as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of September 30, 2009 prepared giving effect to the Financing Transactions and the Reorganization Plan as if such Financing Transactions and Reorganization Plan had occurred on such date. Such pro forma consolidated balance sheet (i) accurately reflects all adjustments reasonably believed by the Borrower to be necessary to give effect to the Financing Transactions and the Reorganization Plan and (ii) presents fairly, in all material respects, on a pro forma basis, the financial position of the Borrower and its consolidated Subsidiaries as of such date, as if the Financing Transactions and the Reorganization Plan had occurred on such date.
(c) Since October 1December 31, 20112008, except as set forth in the Disclosure Statement, there has not occurred any been no change, development, event, change effect, condition or condition that occurrence that, individually or in the aggregate, has had, or could reasonably be expected to have, had a Material Adverse Effect.
(c) The fair value of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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.
Appears in 1 contract
Sources: Loan Agreement (Supermedia Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders the debtor-in-possession monthly operating report filed with the Bankruptcy Court (which report is prepared on a non-GAAP basis) for the most recently ended month for which such report is available. Such operating report presents fairly and accurately in all material respects the financial condition and results of operations and cash flows of the Borrower as of the date and for the period to which it relates.
(b) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112015, reported on by PricewaterhouseCoopers Ernst & Young LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present statement presents fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Restricted Subsidiaries as of such dates and for such periods.
(c) The most recent financial statements furnished pursuant to Section 8.01(a) present fairly, in all material respects, the financial condition of Borrower and its Consolidated Restricted Subsidiaries on a consolidated basis, as of the dates and for the periods set forth above in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(bd) Since October 1the date hereof, 2011and after giving effect to the Transactions, there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse Effect.
(ce) The fair value Except as provided in the Plan of Reorganization, neither the Borrower nor any other Group Member has on the date of this Agreement any Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxes, or unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments other than in respect of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitySecured Obligations.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Swift Energy Co)
Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders Lender (i) its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1March 31, 20112001, reported on by PricewaterhouseCoopers ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) consolidating balance sheets of the Company setting forth such information separately for the Company and each Subsidiary and related consolidating statements of operations for the Company setting forth such information separately for the Company and each Subsidiary as of and for the fiscal quarter year ended March 31, 2001, and including in comparative form the portion figures for the preceding fiscal year, certified by its Chief Financial Officer, and (iii) a copy of the consolidated financial statements of the Company as of and for the fiscal year period ended June 30, 2012 (2001 included with the Company's Form 10-Q filed with the United States Securities and comparable period for the prior fiscal year)Exchange Commission on 20 August 14, 2001. Such All such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the of its Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1Except as disclosed on Schedule 3.04 and as otherwise permitted under the Current Agreement, 2011the Borrowers have no liabilities, contingent or otherwise, not disclosed on the financial statements referred to in this Section, other than in respect of goods and services arising in the ordinary course of business; provided, however, that the Borrowers, in the aggregate, shall not be required to disclose on Schedule 3.04 liabilities that, in the aggregate, total less than $100,000.
(c) Except as disclosed in the Proxy Statement or on Schedule 3.04, since August 24, 2001, there has not occurred any event, been no (i) change or condition that has had, or event which could reasonably be expected to have, have a Material Adverse Effect.
Effect with respect to any Borrower (cother than general trends or new laws, rules, or regulations applicable to similarly situated companies), (ii) The declaration, setting aside or payment of any dividend or other distribution with respect to the capital stock of any Borrower, (iii) issuance of capital stock or options, warrants or rights to acquire capital stock of any Borrower, (iv) material loss, destruction or damage to any property of any Borrower, whether or not insured, (v) acceleration or prepayment of any indebtedness for borrowed money or capital leases or the refunding of any such indebtedness, (vi) labor trouble involving any Borrower or any material change in its personnel or the general terms and conditions of employment of key employees, (vii) waiver of any valuable right in favor of any Borrower, (viii) loan or extension of credit to any officer or employee of any Borrower other than advances for travel-related expenses and similar advances to officers and employees in the ordinary course of business, (ix) acquisition, material writedown or write-off for accounting purposes or disposition of any material assets (or any contract or arrangement therefor) of or with respect to any Borrower, (x) redemption or repurchase of any capital stock of any Borrower, or any other material transaction by any Borrower otherwise than for fair value in the ordinary course of business or (xi) termination of any contract, agreement or arrangement which is or was material to the assets business, assets, operations, prospects or condition, financial or otherwise, of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityBorrower.
Appears in 1 contract
Sources: Credit Agreement (Hauser Inc)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112010, reported on by PricewaterhouseCoopers LLP▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 2012 (and comparable period for the prior fiscal year)2011, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) The Borrower has heretofore furnished to the Lenders its unaudited pro forma consolidated balance sheet and capitalization dated as of June 30, 2011 assuming the Reorganization had occurred as of such date. Such pro forma balance sheet and capitalization present fairly, in all material respects, the pro form financial position of the Borrower and its Consolidated Subsidiaries as of such date.
(c) Since October 1June 30, 2011, except as set forth on Schedule 7.04, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) as of the date hereof, the business of the Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(cd) The fair value of Except as set forth on Schedule 7.04, neither the assets of Borrower nor any Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityFinancial Statements.
Appears in 1 contract
Sources: Credit Agreement (Dune Energy Inc)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as audited consolidated financial statements of the Borrower and its Consolidated Subsidiaries for the fiscal year ended October 1December 31, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants2008, and (ii) as unaudited combined financial statements of the Borrower and its Consolidated Subsidiaries for the fiscal quarter and the portion of the fiscal year ended June ending September 30, 2012 (2009, all in form and comparable period for substance reasonably satisfactory to the prior fiscal year)Administrative Agent. Such financial statements described in clauses (i) and (ii) above present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and the Subsidiaries such Persons as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1the date of the last delivery of financial statements pursuant to Section 7.04(a) or Section 8.01, 2011, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of each Loan Party and each Restricted Subsidiary has been conducted in the ordinary course consistent with past business practices.
(c) The fair value of Except as set forth on Schedule 7.21, on the assets of the Company and its Subsidiaries most recent financial statement delivered pursuant to Section 7.04(a) or Section 8.01(a) or (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities b), or in a certificate delivered pursuant to Section 8.01(e), no Loan Party has any Debt (including Disqualified Capital Stock) not permitted under Section 9.02, or any material contingent liabilities, material off-balance sheet liabilities, material and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent unusual forward or unliquidated liabilities at long-term commitments, or unrealized or anticipated material losses from any time, such liabilities will be computed at the amount which, 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 liabilityunfavorable commitments.
Appears in 1 contract
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished delivered to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter Administrative Agent and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal yearLenders financial information delivered pursuant to Section 6.01(m). Such When delivered, all financial statements present fairly, so delivered pursuant to Section 6.01(m) and Section 8.01 are complete and correct in all material respectsrespects and fairly present in all material respects on a consolidated basis the assets, the liabilities and financial position of the Parent and its Subsidiaries as at such dates, and the results of the operations and cash flows changes of financial position for the Company and the Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to then ended (other than customary year-end audit adjustments for unaudited financial statements and the absence of footnotes from unaudited financial statements), in each case, in accordance with GAAP. All such financial statements, including the related schedules and consolidated notes thereto, have been prepared in accordance with GAAP. Such financial statements of stockholders’ equity in the case show all Material Debt and other material liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date thereof, including material liabilities for taxes, material commitments, and Debt, in each case, to the extent required to be disclosed under GAAP. All pro forma financial statements referred and projections delivered pursuant to Section 6.01(m) or Section 8.01(f) were prepared in clause (ii) abovegood faith on the basis of the assumptions stated therein, which assumptions are believed to be reasonable in light of then existing conditions except that such financial projections and pro forma statements shall be subject to normal year end closing and audit adjustments.
(b) Since October 1May 25, 20112017, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect (other than as a result of the events leading up to, directly arising from, or direct effects of, the commencement or continuance of the Bankruptcy Proceedings) and (ii) the business of the Parent and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Neither the assets of Parent, the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Borrower nor any other Subsidiary has on the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityFinancial Statements.
Appears in 1 contract
Sources: Credit Agreement (Vanguard Natural Resources, Inc.)
Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet sheets and consolidated related statements of income, stockholders’ ' equity and cash flows (i) as of and for the five fiscal year years ended October February 1, 20111998, reported on by PricewaterhouseCoopers Ernst & Young LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveGAAP.
(b) Since October 1The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Effective Date, 2011prepared giving effect to the Transactions as if the Transactions had occurred on such date. Such pro forma consolidated balance sheet (i) has been prepared in good faith based on the same assumptions used to prepare the pro forma financial statements included in the Information Memorandum (which assumptions are believed by the Borrower to be reasonable), there has not (ii) is based on the best information available to the Borrower after due inquiry, (iii) accurately reflects all adjustments necessary to give effect to the Transactions and (iv) presents fairly, in all material respects, the pro forma financial position of the Borrower and the consolidated Subsidiaries as of the Effective Date as if the Transactions had occurred any event, change or condition that has had, or could reasonably be expected to have, a Material Adverse Effecton such date.
(c) The fair value Except as publicly disclosed by the Borrower prior to the date hereof or as disclosed in the Information Memorandum and except for the Disclosed Matters, after giving effect to the Transactions, none of the assets Borrower or any of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) has, as of the Company Effective Date, any material contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Except as publicly disclosed by the Borrower prior to the date hereof or as disclosed in the Information Memorandum and its Subsidiaries except for the Disclosed Matters, since February 1, 1998, there has been no material adverse change in the business, assets, operations, properties, condition (financial or otherwise), contingent liabilities, or material agreements of the Borrower and the Company and its Subsidiaries are able to pay all their liabilities Subsidiaries, taken as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilitya whole.
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Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ stockholders equity and cash flows (i) as of and for the fiscal year ended October 1December 31, 20112015, reported on by PricewaterhouseCoopers ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30December 31, 2012 (and comparable period for the prior fiscal year)2016, certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1December 15, 2011, 2016 (i) there has not occurred any been no event, change development or condition circumstance (other than the pendency of the Bankruptcy Proceedings) that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of Neither the assets of Borrower nor any Subsidiary has on the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities date hereof any material Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities) of , off-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except for the Company and its Subsidiaries and Indebtedness or as referred to or reflected or provided for in the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityFinancial Statements.
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Financial Condition; No Material Adverse Change. (a) The Company Parent has heretofore furnished to the Administrative Agent and the Lenders its consolidated balance sheet sheet, and the related consolidated or condensed consolidated, as applicable, statements of income, stockholderscash flows and shareholders’ equity of the Parent and cash flows its Subsidiaries (ia) as of and for the fiscal year ended October 1December 31, 2011, reported on audited by PricewaterhouseCoopers and accompanied by the unqualified opinion of KPMG LLP, independent certified public accountants, and (iib) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such 2012, certified by an Authorized Officer that such financial statements present fairly, fairly in all material respects, the financial position condition and results of operations and cash flows of the Company Parent and the its Subsidiaries as of such dates and for such periods periods. Such financial statements were prepared in accordance with GAAP consistently applied, subject to year-end audit adjustments and applied on a consistent basis. Since the absence date of footnotes and consolidated the audited financial statements of stockholders’ equity in the case of the statements referred Parent that have most recently been delivered pursuant to in clause (ii) aboveSection 5.01(a), there has been no material adverse change.
(b) Since October 1Except as disclosed to the Administrative Agent in writing, 2011none of the Parent, there the Borrower or any Restricted Subsidiary has not occurred any eventmaterial contingent liabilities, change material liabilities for taxes, unusual and material forward or condition that has hadlong-term commitments or material unrealized or anticipated losses from any unfavorable commitments, except as referred to or could reasonably be expected reflected or provided for in the consolidated balance sheets of the Parent or as otherwise disclosed to have, a Material Adverse Effectthe Lenders in writing.
(c) The fair value Parent and the Borrower have disclosed to the Lenders in writing any and all facts that, in the reasonable good faith judgment of the assets of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Company and its Subsidiaries Parent and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any timeBorrower, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can could reasonably be expected to become an actual or matured liabilityresult in a Material Adverse Effect.
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Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year ended October 1, 2011, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter Audited Financial Statements and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements Unaudited Financial Statements present fairly, in all material respects, the financial position of Holdings, the Borrowers and the Subsidiaries on a combined consolidated basis as of such dates and their results of operations and cash flows of for the Company period covered thereby, and the Subsidiaries as of such dates and for such periods were prepared in accordance with GAAP consistently appliedapplied throughout the period covered thereby except as otherwise expressly noted therein, subject to normal year-end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity and, in the case of the statements referred to in clause (ii) aboveUnaudited Financial Statements, the absence of footnotes.
(b) Since October 1Except as set forth in the financial statements referred to in this Section 3.04 and the Form 10, 2011since the Effective Date, there has not occurred any no event, change or condition has occurred that has had, or could would reasonably be expected to have, a Material Adverse Effect.
(c) The fair value ; provided that, solely for purposes of this Section 3.04(b), from and after the First Amendment Effective Date until December 31, 2020, the impacts of the assets COVID-19 pandemic on the business, operations, properties, assets, liabilities or condition (financial or otherwise) of Holdings, the Borrowers and the Restricted Subsidiaries, taken as a whole, that were disclosed (i) in reports filed by Holdings after the Effective Date but on or prior to the First Amendment Effective Date pursuant to Section 13 of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than Securities Exchange Act of 1934, copies of which have been furnished to the total amount of liabilities Lenders prior to the First Amendment Effective Date (including contingent and unliquidated liabilities) by posting on the website of the Company SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) or (ii) in writing to the Lenders in the Lender Presentation distributed on May 20, 2020 (which included Holdings’ Consolidated Total Leverage Ratio covenant projections, Consolidated Interest Coverage Ratio covenant projections, a Covenant Forecast and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities Working Forecast Model) will be computed at the amount which, in light disregarded for purposes of all the facts and circumstances existing at such time, represents the amount that can determining whether a Material Adverse Effect has occurred or would reasonably be expected to become an actual or matured liabilityoccur.
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Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated balance sheet and consolidated statements of income, stockholders’ equity and cash flows (i) as of and for the fiscal year years ended October 1December 31, 20112002 and December 31, reported on 2003, audited by PricewaterhouseCoopers KPMG LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year). Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes and consolidated GAAP. The financial statements of stockholders’ equity the AGT Acquisition Target heretofore furnished to Lenders present fairly, in all material respects, the case financial position and results of operations and cash flows of the AGT Acquisition Target as of such dates and for such periods indicated therein in accordance with GAAP. The financial statements referred of Maythenyi heretofore furnished to Lenders present fairly, in clause (ii) aboveall material respects, the financial position and results of operations and cash flows of Maythenyi as of such dates and for such periods indicated therein in accordance with GAAP.
(b) Since October 1December 31, 20112003, there has not occurred any eventbeen no material adverse change in the business, change assets, operations or condition that has hadcondition, financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole, or could reasonably be expected (to have, a Material Adverse Effectthe knowledge of the Borrower or any Subsidiary) the AGT Acquisition Target or Maythenyi.
(c) The fair value Except as disclosed in the financial statements referred to above or the notes thereto and except for Disclosed Matters, after giving effect to the Transactions, none of the assets Borrower or its Subsidiaries has, as of the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities (including Effective Date, any material contingent and unliquidated liabilities) of the Company and its Subsidiaries and the Company and its Subsidiaries are able to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent , unusual long term commitments or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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 liabilityunrealized losses.
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Financial Condition; No Material Adverse Change. (a) The Company Borrower has heretofore furnished to the Lenders its consolidated concolidated balance sheet and consolidated statements of income, stockholders’ shareholders equity and cash flows (i) as of and for the fiscal year years ended October 1August 31, 20112011 and 2012, reported on audited by PricewaterhouseCoopers LLP▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C., independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2012 (and comparable period for the prior fiscal year)certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP consistently appliedGAAP, subject to year-end year‑end audit adjustments and the absence of footnotes and consolidated statements of stockholders’ equity in the case of the statements referred to in clause (ii) aboveunaudited quarterly financial statements.
(b) Since October 1August 31, 20112012, (i) there has not occurred any been no event, change development or condition circumstance that has had, had or could reasonably be expected to have, have a Material Adverse EffectEffect and (ii) the business of the Borrower and its Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) The fair value of On the assets of date hereof, neither the Company and its Subsidiaries (both at fair valuation and at present fair saleable value) is greater than the total amount of liabilities Borrower nor any Subsidiary has any Debt (including Disqualified Capital Stock) or any contingent and unliquidated liabilities, off‑balance sheet liabilities or partnerships, liabilities for taxes or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in the financial statements described in Section 7.04(a) of or in the Company and its Subsidiaries and the Company and its Subsidiaries are able most recent financial statements delivered pursuant to pay all their liabilities as such liabilities mature and do not have unreasonably small capital with which to carry on their business. In computing the amount of contingent Section 8.01(a) or unliquidated liabilities at any time, such liabilities will be computed at the amount which, 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(b).
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