Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements. (b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements. (d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Halcon Resources Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 20152018, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 20162019. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since June 30, 2016the Petition Date, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (ii) subject to the entry of the DIP Order, the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities or partnerships, liabilities for taxesTaxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Sources: Junior Secured Debtor in Possession Credit Agreement (Halcon Resources Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower Griffon has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders stockholders’ equity and cash flows (i) as of and for the fiscal year ended December 31September 30, 20152007, reported on by Deloitte & Touche ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountantsand its unaudited consolidated and consolidating balance sheet and the related unaudited consolidated and consolidating statements of income, stockholders’ equity and (ii) as of and cash flows for the fiscal quarter and the portion of the fiscal year six-month period ended June 30March 31, 20162008. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Griffon and its Consolidated Subsidiaries subsidiaries as of such dates and for such periods and in accordance with GAAP. As of the Effective Date, there are no liabilities of Griffon or any of its subsidiaries, fixed or contingent, which are material in relation to the consolidated financial condition of Griffon and its subsidiaries that are not reflected in such financial statements or in the notes thereto, other than liabilities arising in the ordinary course of business since September 30, 2007 or as disclosed in the quarterly report filed by Griffon with the SEC on Form 10-Q with respect to the fiscal quarter ending March 31, 2008.
(b) The Loan Parties have heretofore furnished to the Lenders their unaudited consolidated and consolidating balance sheet and related unaudited consolidated and consolidating statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended September 30, 2007 and their unaudited consolidated and consolidating balance sheet and the related unaudited consolidated and consolidating statements of income, stockholders’ equity and cash flows for the fiscal quarter and the six-month period ended March 31, 2008. Such financial statements present fairly, in all material respects and in accordance with GAAP, subject the financial position and results of operations and cash flows of the Loan Parties and their Subsidiaries as of such dates. As of the Effective Date, there are no liabilities of any Loan Party or any of its Subsidiaries, fixed or contingent, which are material in relation to year-end audit adjustments the consolidated financial condition of the Loan Parties and the absence of footnotes their Subsidiaries that are not reflected in such financial statements or in the case notes thereto, other than liabilities arising in the ordinary course of the unaudited quarterly financial statementsbusiness since September 30, 2007.
(bc) Since June September 30, 20162007, (i) there has been no not occurred any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Financial Condition; No Material Adverse Effect. The Borrowers (ai) The Borrower has heretofore have furnished to the Lenders its Administrative Agent on or prior to the Closing Date, the audited combined consolidated balance sheet and financial statements of incomethe Borrowers and their Subsidiaries and (to the extent available) the unaudited unit financial statements of each Non-Consolidated Subsidiary (in each case consisting of balance sheets, stockholders equity income statements and cash flows (iflow statements) as of and for the fiscal year Financial Years ended December 31September 30, 20152010, reported on by Deloitte & Touche LLP2011 and 2012 and the unaudited combined consolidated financial statements of the Borrowers and their Subsidiaries and (to the extent available) the unaudited unit financial statements of each Non-Consolidated Subsidiary for the nine month period ended June 30, independent public accountants2013, and (ii) will have furnished on or prior to the date required by Section 8.01(1)(a), the combined consolidated financial statements of the Borrowers and their Subsidiaries, the consolidated financial statements of Parent GP, and the unit financial statements for each of the required Non-Consolidated Subsidiaries, as of and for the fiscal quarter dates and the portion periods specified therein, in each case consisting of the fiscal year ended June 30balance sheets, 2016income statements and cash flow statements and certified by a Responsible Officer. Such financial statements present fairly, in all material respects, the consolidated financial position and results of operations and cash flows of the Borrower Borrowers and its their Subsidiaries, on a combined consolidated basis, of Parent GP on a consolidated basis, or of such Non-Consolidated Subsidiaries Subsidiaries, as applicable, 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 June 30. As of the Closing Date, 2016, (i) there has been no event, development or circumstance of which any Loan Party is aware that has had or could reasonably be expected to have a Material Adverse Effect Effect. All information (including that disclosed in all financial statements) pertaining to Parent GP and the Loan Parties other than projections (iithe “Information”) the business of the Borrower and its Restricted Subsidiaries that has been conducted only in the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished will be made available to the Lenders its pro forma consolidated balance sheet as of or the Closing Date after giving pro forma effect to Administrative Agent by the transactions contemplated by this AgreementBorrowers is or will be, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairlywhen furnished, complete and correct in all material respectsrespects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the pro forma balance sheet statements contained therein not materially misleading in light of the Borrower and its Consolidated Subsidiaries as of circumstances under which such date statements are made. The projections that have been or will be made available to the Lenders or the Administrative Agent by the Borrowers have been or will be prepared in accordance with GAAPgood faith based upon reasonable assumptions.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and financial statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and Borrower for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2016. Such financial statements 2024 present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on as of such the dates and for such the periods covered thereby in accordance with GAAP, subject subject, in the case of quarterly financial statements, to year-end audit adjustments and the absence of footnotes in and normal year-end adjustments. Except for its obligations under the case Loan Documents, Holdings has no assets or liabilities other than the Capital Stock of the unaudited quarterly financial statementsBorrower and ordinary course liabilities relating to its existence and status as a holding company.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of March 31, 2024 and related consolidated statements of operations and cash flows, as well as pro forma levels of Consolidated Adjusted EBITDA and other operating data, in each case for the twelve month period ending as of such date, copies of which have been delivered to the Administrative Agent prior to the date hereof, were prepared by the management of the Borrower in accordance with GAAPgood faith and fairly and accurately present the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date, adjusted to give effect (as if such events had occurred on such date) to (i) the Transactions occuring on the Closing Date, (ii) the making of the Initial Term Loans, (iii) the application of the proceeds therefrom as contemplated hereby and (iv) the payment of Transaction Costs. As of the date of such balance sheet and the date hereof, no Loan Party had or has any material liabilities, contingent or otherwise, including liabilities for taxes, long-term leases or forward or long-term commitments, which are not properly reflected on such balance sheet.
(c) Since the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Cano Health, Inc.)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders Lender its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 20152004, reported on by Deloitte & Touche Touche, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 20162005, 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 Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lender its unaudited balance sheet, statements of income, and stockholders equity of the Borrower on a standalone basis (i) as of and for the fiscal year ended December 31, 2004, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2005, all being 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 Borrower on a standalone basis as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes.
(c) Since June 30, 20162005, (i) there has been no eventchange in the business, development assets, operations, prospects or circumstance condition, financial or otherwise, of the Borrower and its Regulated Subsidiaries, taken as a whole, as of the Closing Date, or subsequently that has had not been publicly disclosed, except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial StatementsEffect.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet Each of the Borrower and its Consolidated Subsidiaries Guarantor are not liable for any Indebtedness of their respective subsidiaries except as of such date in accordance with GAAP.set forth on Schedule 3.04(d) hereof, and except as allowed by Article VI hereof. SECTION
Appears in 1 contract
Sources: Credit Agreement (Central Vermont Public Service Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and financial statements of income, stockholders equity and cash flows (ithe Borrower referred to in Section 4.01(e) as of and or for the fiscal year ended as of December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, 2021 and (ii) as of and for the fiscal quarter and the portion of the fiscal year quarters ended June 30, 2016. Such financial statements 2022 and September 30, 2022 present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on as of such the dates and for such the periods covered thereby in accordance with GAAP, subject subject, in the case of quarterly financial statements, to year-end audit adjustments and the absence of footnotes in and normal year-end adjustments. Except for its obligations under the case Loan Documents, Holdings has no assets or liabilities other than the Capital Stock of the unaudited quarterly financial statementsBorrower and ordinary course liabilities relating to its existence and status as a holding company.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of September 30, 2022 and related consolidated statements of operations and cash flows, as well as pro forma levels of Consolidated Adjusted EBITDA and other operating data, in each case for the twelve month period ending as of such date, copies of which have been delivered to the Initial Lenders prior to the date hereof, were prepared by the management of the Borrower in accordance with GAAPgood faith and fairly and accurately present the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date, adjusted to give effect (as if such events had occurred on such date) to (i) the Transactions occuring on the Closing Date, (ii) the making of the Initial Term Loans, (iii) the application of the proceeds therefrom as contemplated hereby and (iv) the payment of Transaction Costs. As of the date of such balance sheet and the date hereof, no Loan Party had or has any material liabilities, contingent or otherwise, including liabilities for taxes, long-term leases or forward or long-term commitments, which are not properly reflected on such balance sheet.
(c) Since December 31, 2019, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Cano Health, Inc.)
Financial Condition; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its 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.
(b) The unaudited consolidated balance sheet of the Borrower dated September 30, 2012, and the related consolidated statements of earnings and cash flows of the Borrower for the nine-month period ended September 30, 2012 (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (B) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby, subject to the absence of footnotes and to normal year-end audit adjustments.
(c) The Borrower has heretofore furnished to Administrative Agent (for distribution to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (iiLenders) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as at June 30, 2012, and the related consolidated pro forma statement of earnings of the Borrower and its Subsidiaries for the twelve-month period then ended (such pro forma balance sheet and statement of earnings, the “Pro Forma Financial Statements”), which have been prepared giving effect to the Transactions (excluding the impact of purchase accounting effects required by GAAP) as if such transactions had occurred on such date or at the beginning of such twelve-month period, as the case may be. The Pro Forma Financial Statements have been *Confidential Treatment Requested. Omitted portions filed with the Commission. prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis and in accordance with GAAP the estimated financial position of the Borrower and its Subsidiaries as at June 30, 2012, and their estimated results of operations for the periods covered thereby, assuming that the Transactions had actually occurred at such date or at the beginning of such period (excluding the impact of purchase accounting effects required by GAAP).
(d) Since December 31, 2011, there has been no Material Adverse Effect.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower Holdings has heretofore furnished to the Lenders its consolidated balance sheet and related statements of income, stockholders stockholders' equity and cash flows (i) as of and for the fiscal year ended December 31November 1, 20151998, reported on by Deloitte & Touche KPMG, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June January 31, 1999, certified by its chief financial officer, (iii) as of and for the fiscal quarter and the portion of the fiscal year ended April 30, 20161999, 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 Borrower and its Consolidated Subsidiaries consolidated subsidiaries 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 statementsstatements referred to in clauses (ii) and (iii) above.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower Holdings has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the end of the most recently completed fiscal quarter of Holdings and its subsidiaries ended after April 30, 1999, and that is at least 45 days prior to the Closing Date after Date, prepared giving pro forma effect to the transactions contemplated by this Agreement, including Transactions as if the repayment of the DIP Credit AgreementTransactions 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 Holdings and the Borrower to be reasonable), (ii) is based on the best information available to Holdings and 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 balance sheet financial position of Holdings and its consolidated subsidiaries as of the end of the most recently completed fiscal quarter of Holdings ended after April 30, 1999, and that is at least 45 days prior to the Closing Date, as if the Transactions had occurred on such date.
(c) 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 Holdings, the Borrower or the Subsidiaries has, as of the Closing Date, any material contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since November 1, 1998, there has been no material adverse effect on the business, assets, liabilities (including, but not limited to, potential Environmental Liabilities, litigation liabilities and other contingent liabilities), prospects, results of operations or condition (financial or otherwise) of Holdings, the Borrower and its Consolidated Subsidiaries their respective subsidiaries, taken as of such date in accordance with GAAPa whole.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its (i) the audited consolidated and consolidating balance sheet sheets and related statements of income, stockholders stockholder's equity and cash flows (i) as of and Parent for the 2002 fiscal year ended December 31year, 2015, reported on in each case prepared by Deloitte & Touche LLP, independent public accountantsa nationally recognized accounting firm reasonably acceptable to the Administrative Agent, and (ii) as the unaudited consolidated and consolidating balance sheets and related statements of income, stockholder's equity and cash flows of Parent for the each subsequent fiscal quarter and ended at least 45 days before the portion of the fiscal year ended June 30, 2016Effective Date. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Parent and its Consolidated Subsidiaries consolidated subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its the pro forma consolidated balance sheet of Parent as of the Closing Date Effective Date, after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit AgreementTransactions. 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 Parent and the Borrower to be reasonable), (ii) is based on the best information available to Parent and 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 balance sheet financial position of the Borrower Parent and its Consolidated Subsidiaries consolidated subsidiaries as of such date date.
(c) Except as disclosed in accordance with GAAPthe 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 Parent, the Borrower or the Subsidiaries has, as of the Effective Date, any material contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since December 31, 2002, there has been no material adverse effect on the business, assets, results of operations, properties or financial condition of Parent and its subsidiaries, taken as a whole.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its audited consolidated (and unaudited consolidating) balance sheet and statements of incomeoperations and stockholders equity, stockholders equity and its audited consolidated statement of cash flows (i) as of and for each of the fiscal year years ended December January 31, 20151999 and January 31, 2000, all such audited statements reported on by Deloitte & Touche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30October 28, 20162000, unaudited but certified by a Financial Officer. Such financial statements present fairly, in all material respects, the financial position condition and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries as of such dates and for such periods in accordance with GAAPGAAP consistently applied throughout the periods involved, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statementsstatements referred to in CLAUSE (II) above.
(b) Since June 30The most recent consolidated and consolidating balance sheet and statements of operations and stockholders equity and consolidated statement of cash flows, 2016together with the respective notes thereto, (i) there has been no event, development or circumstance that has had or could reasonably be expected delivered to have a Material Adverse Effect and (ii) the business each of the Borrower and its Restricted Subsidiaries has been conducted only Lenders in accordance with the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stockprovisions of SECTION 5.1(A) or any contingent liabilities(B), off-balance sheet liabilities or partnershipsas the case may be, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents present fairly, in all material respects, the pro forma balance sheet financial condition of the Borrower and its Consolidated consolidated Subsidiaries as of such the date thereof and the results of operations and cash flows of the Borrower and its consolidated Subsidiaries for the period then ended in accordance with GAAP, subject to year-end adjustments and the absence of footnotes in the case of statements referred to in SECTION 5.1(B).
(c) Except as disclosed in the financial statements referred to above or the notes thereto and except for the Disclosed Matters, none of the Borrower or any Restricted Subsidiary has any material contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since January 31, 2000, there has occurred no change, event, circumstance or condition in or with respect to the business, assets, liabilities, condition (financial or otherwise) or prospects of the Borrower or any Restricted Subsidiary which, individually or in the aggregate with all other such changes, events, circumstances and conditions occurring since January 31, 2000, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Stewart & Stevenson Services Inc)
Financial Condition; No Material Adverse Effect. (a) The audited financial statements referenced in Sections 4.01(h) and 5.01(a) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and their results of operations on a consolidated basis for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries referenced in Sections 4.01(h) and 5.01(b) and the related consolidated statements of income, shareholders’ equity and cash flows for the fiscal period ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) The Borrower has heretofore furnished to the Lenders its consolidated Lead Arranger the unaudited pro forma condensed balance sheet as of June 30, 2017 of the Borrower and its Subsidiaries and the unaudited pro forma condensed statements of income, stockholders equity and cash flows (i) as of and income for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter 2016 and the portion of the fiscal year six months ended June 30, 2016. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows 2017 of the Borrower and its Consolidated Subsidiaries included in the Schedule TO (such pro forma balance sheet and statement of income, the “Pro Forma Financial Statements”), which have been prepared giving effect to the Transactions as if such transactions had occurred on such date or at the beginning of such period, as the case may be. The Pro Forma Financial Statements have been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of such dates the date of delivery thereof, and for such periods present fairly in all material respects on a pro forma basis and in accordance with GAAP, subject to year-end audit adjustments and GAAP the absence of footnotes in the case estimated financial position of the unaudited quarterly financial statementsBorrower and its Subsidiaries, and its estimated results of operations for the periods covered thereby, assuming that the Transactions had actually occurred at such date or at the beginning of such period.
(bd) Since June 30the Effective Date, 2016, (i) there has been no eventevent or circumstance, development either individually or circumstance in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby and (ii) fairly present the financial condition of the entities to which they relate as of the Lenders its consolidated balance sheet dates thereof and statements their results of income, stockholders equity operations and cash flows for the periods covered thereby in accordance with GAAP consistently applied throughout the period covered thereby.
(b) The Unaudited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, and (ii) fairly present the financial condition of the entities to which they relate as of the date thereof and their results of operations and cash flows for the periods covered thereby, subject, in the case of clauses (i) and (ii), to the absence of certain information and note disclosures normally included in the consolidated financial statements prepared under GAAP.
(c) The unaudited pro forma combined results of operations of Parent for each of the fiscal year ended December 31, 20152013 and three months ended March 31, reported on 2014 as presented in the Form 10 filed by Deloitte & Touche LLP, independent public accountants, and (ii) as of Parent and for the fiscal quarter and the portion of the fiscal year three months ended June 30, 2016. Such 2014 provided to the Lenders (consistent with the methodology used in preparing the pro forma financial statements present fairlyincluded in the Form 10) give effect to the spinoff of Parent from NorthStar Realty Finance Corp. as if the spinoff had occurred on January 1, 2013 (the “Pro Forma Financial Statements”). The Pro Forma Financial Statements have been prepared in all material respectsgood faith, the financial position and results of operations and cash flows based on assumptions believed by Parent to be reasonable as of the Borrower and its Consolidated Subsidiaries as date 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 June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statementsdelivery thereof.
(d) The Borrower has heretofore furnished to the Lenders its pro forma the consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower Parent and its Consolidated Subsidiaries as of September 30, 2015 and a related pro forma statement of operations and reconciliation of estimated pro forma adjusted Consolidated EBITDA for the twelve months then ended (the “Acquisition Pro Forma Financial Statements”), which have been prepared giving effect to the Transactions (excluding the impact of purchase accounting effects required by GAAP) as if such transactions had occurred on such date or at the beginning of such period, as the case may be. The Acquisition Pro Forma Financial Statements have been prepared in accordance with GAAPgood faith, based on assumptions believed by Parent to be reasonable as of the date of delivery thereof.
(e) Since December 31, 2014, there have been no events, developments or circumstances that have had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Sources: Term Loan Credit Agreement (NorthStar Asset Management Group Inc.)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 20152016, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 20162017. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since June 30, 20162017, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Halcon Resources Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders Lender its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 20152006, reported on by Deloitte & Touche Touche, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June September 30, 20162007, certified by its Chief Financial Officer. Such financial statements statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) Since June 30The Borrower has heretofore furnished to the Lender its unaudited balance sheet, 2016statements of income, and stockholders equity of the Borrower on a standalone basis (i) as of and for the fiscal year ended December 31, 2006, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2007, all being 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 Borrower on a standalone basis as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes.
(c) Since September 30, 2007, there has been no eventchange in the business, development assets, operations, prospects or circumstance condition, financial or otherwise, of the Borrower and its Regulated Subsidiaries, taken as a whole, as of the Closing Date, or subsequently that has had not been publicly disclosed, except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial StatementsEffect.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet Each of the Borrower and its Consolidated Subsidiaries Guarantor are not liable for any Indebtedness of their respective subsidiaries except as of such date in accordance with GAAP.set forth on Schedule 3.04(d) hereof, and except as allowed by Article VI hereof. SECTION
Appears in 1 contract
Sources: Credit Agreement (Central Vermont Public Service Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders Lender its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 20152010, reported on by Deloitte & Touche Touche, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 20162011, certified by its Chief Financial Officer. Such financial statements statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lender its unaudited balance sheet, statements of income, and stockholders equity of the Borrower on a standalone basis (i) as of and for the fiscal year ended December 31, 2010, and (ii) as of and for the portion of the fiscal year ended June 30, 2011, all being 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 Borrower on a standalone basis as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes.
(c) Since June 30, 20162011, (i) there has been no eventchange in the business, development assets, operations, prospects or circumstance condition, financial or otherwise, of the Borrower and its Regulated Subsidiaries, taken as a whole, as of the Closing Date, except changes that has had individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial StatementsEffect.
(d) The Borrower has heretofore furnished to the Lenders is not liable for any Indebtedness of its pro forma consolidated balance sheet subsidiaries except as of the Closing Date after giving pro forma effect to the transactions contemplated set forth on Schedule 3.04(d) hereof, and except as allowed by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAPArticle VI hereof.
Appears in 1 contract
Sources: Credit Agreement (Central Vermont Public Service Corp)
Financial Condition; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its 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.
(b) The unaudited consolidated balance sheet of the Borrower dated September 30, 2012, and the related consolidated statements of earnings and cash flows of the Borrower for the nine-month period ended September 30, 2012 (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (B) fairly present in all material respects the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby, subject to the absence of footnotes and to normal year-end audit adjustments.
(c) The Borrower has heretofore furnished to Administrative Agent (for distribution to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (iiLenders) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as at June 30, 2012, and the related consolidated pro forma statement of earnings of *Confidential Treatment Requested. Omitted portions filed with the Commission. the Borrower and its Subsidiaries for the twelve-month period then ended (such pro forma balance sheet and statement of earnings, the “Pro Forma Financial Statements”), which have been prepared giving effect to the Transactions (excluding the impact of purchase accounting effects required by GAAP) as if such transactions had occurred on such date or at the beginning of such twelve-month period, as the case may be. The Pro Forma Financial Statements have been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis and in accordance with GAAP the estimated financial position of the Borrower and its Subsidiaries as at June 30, 2012, and their estimated results of operations for the periods covered thereby, assuming that the Transactions had actually occurred at such date or at the beginning of such period (excluding the impact of purchase accounting effects required by GAAP).
(d) Since December 31, 2011, there has been no Material Adverse Effect.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower Parent has heretofore furnished to the Lenders its (i)(A) the audited consolidated balance sheet sheets and related consolidated statements of incomeoperations, stockholders shareholders’ equity and cash flows (i) of the U.S. Borrower and its consolidated Subsidiaries as of and for the fiscal year years ended December 31February 1, 20152014, reported on February 2, 2013 and January 28, 2012, each audited by and accompanied by the unqualified opinion of Deloitte & Touche LLP, independent registered public accountantsaccounting firm, and (iiB) the unaudited consolidated balance sheets and related statements of operations, shareholders’ equity and cash flows of the U.S. Borrower and its consolidated Subsidiaries as of and for each of the fiscal quarters and the portions of the fiscal year ended May 3, 2014 and May 4, 2013 and (ii)(A) the consolidated balance sheets and related statements of operations and comprehensive income, stockholders’ equity and cash flows of the Acquired Company and its consolidated subsidiaries as of and for the fiscal quarter years ended February 1, 2014, February 2, 2013 and January 28, 2012 and January 29, 2011, each audited by and accompanied by the unqualified opinion of Deloitte & Touche LLP, independent registered public accounting firm, and (B) the unaudited consolidated balance sheet and related statements of operations and cash flows of the Acquired Company and its consolidated subsidiaries as of and for each of the fiscal quarters and the portion portions of the fiscal year ended June 30May 3, 20162014 and May 4, 2013. Such financial statements (x) present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Parent and its Consolidated consolidated Subsidiaries or the Acquired Company and its consolidated subsidiaries, as the case may be, 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 statementsstatements referred to in clauses (i)(B) and (ii)(B) above and (y) comply in all material respects with the requirements of Regulation S-X under the Securities Act.
(b) Since June 30Parent has heretofore furnished to the Lenders a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of Parent and its consolidated Subsidiaries as of and for the period of 12 consecutive months ended May 3, 20162014, prepared giving effect to the Transactions as if the Transactions had occurred on such date, in the case of such balance sheet, or at the beginning of such period, in the case of such statements of operations. Such pro forma consolidated balance sheet and pro forma statements of operations (i) have been prepared by Parent in good faith based on the same assumptions used to prepare the pro forma financial statements included in the Information Materials (which assumptions are believed on the Effective Date by the Borrowers to be reasonable), (ii) are based on the best information available to the Borrowers, (iii) accurately reflect all adjustments necessary to give effect to the Transactions, (iv) present fairly, in all material respects, the pro forma financial position and results of operations of Parent and its consolidated Subsidiaries as of and for the period of 12 consecutive months ended on May 3, 2014, as if the Transactions had occurred on such date or at the beginning of such period, as the case may be and (v) comply in all material respects with the requirements of Regulation S-X under the Securities Act (except for the period presented).
(c) Since February 1, 2014, there has been no event, development or circumstance that has had had, or could would reasonably be expected to have have, a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stock) business, assets, results of operations 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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as financial condition of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respectsParent, the pro forma balance sheet of the Borrower Acquired Company and its Consolidated Subsidiaries their respective subsidiaries, taken as of such date in accordance with GAAPa whole.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and financial statements of income, stockholders equity and cash flows (ithe Borrower referred to in Section 4.02(f)(a) as of and or for the fiscal year ended as of December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, 2020 and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2016. Such financial statements 2021 present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on as of such the dates and for such the periods covered thereby in accordance with GAAP, subject subject, in the case of quarterly financial statements, to year-end audit adjustments and the absence of footnotes in and normal year-end adjustments. Except for its obligations under the case Loan Documents, Holdings has no assets or liabilities other than the Capital Stock of the unaudited quarterly financial statementsBorrower and ordinary course liabilities relating to its existence and status as a holding company.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of March 31, 2021 and related consolidated statements of operations and cash flows, as well as pro forma levels of Consolidated Adjusted EBITDA and other operating data, in each case for the twelve month period ending as of such date, copies of which have been delivered to the Arranger prior to the date hereof, were prepared by the management of the Borrower in accordance with GAAPgood faith and fairly and accurately present the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date, adjusted to give effect (as if such events had occurred on such date) to (i) the Transactions occuring on the Closing Date, (ii) the making of the Bridge Loans, (iii) the application of the proceeds therefrom as contemplated hereby and (iv) the payment of Transaction Costs. As of the date of such balance sheet and the date hereof, no Loan Party had or has any material liabilities, contingent or otherwise, including liabilities for taxes, long-term leases or forward or long-term commitments, which are not properly reflected on such balance sheet.
(c) Since December 31, 2020, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders Lender its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 20152007, reported on by Deloitte & Touche Touche, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 20162008, certified by its Chief Financial Officer. Such financial statements statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lender its unaudited balance sheet, statements of income, and stockholders equity of the Borrower on a standalone basis (i) as of and for the fiscal year ended December 31, 2007, and (ii) as of and for the portion of the fiscal year ended June 30, 2008, all being 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 Borrower on a standalone basis as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes.
(c) Since June 30, 20162008, (i) there has been no eventchange in the business, development assets, operations, prospects or circumstance condition, financial or otherwise, of the Borrower and its Regulated Subsidiaries, taken as a whole, as of the Closing Date, or subsequently that has had not been publicly disclosed, except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial StatementsEffect.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet Each of the Borrower and its Consolidated Subsidiaries Guarantor are not liable for any Indebtedness of their respective subsidiaries except as of such date in accordance with GAAPset forth on Schedule 3.04(d) hereof, and except as allowed by Article VI hereof.
Appears in 1 contract
Sources: Credit Agreement (Central Vermont Public Service Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and financial statements of income, stockholders equity and cash flows (ithe Borrower referred to in Section 4.01(e) as of and or for the fiscal year ended as of December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, 2019 and (ii) as of and for the fiscal quarter and the portion of the fiscal year quarters ended June 30, 2016. Such financial statements 2020 and September 30, 2020 present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries on as of such the dates and for such the periods covered thereby in accordance with GAAP, subject subject, in the case of quarterly financial statements, to year-end audit adjustments and the absence of footnotes in and normal year-end adjustments. Except for its obligations under the case Loan Documents and the Acquisition Agreement, Holdings has no assets or liabilities other than the Capital Stock of the unaudited quarterly financial statementsBorrower and ordinary course liabilities relating to its existence and status as a holding company.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of September 30, 2020 and related consolidated statements of operations and cash flows, as well as pro forma levels of Consolidated Adjusted EBITDA and other operating data, in each case for the twelve month period ending as of such date, copies of which have been delivered to the Arranger prior to the date hereof, were prepared by the management of the Borrower in accordance with GAAPgood faith and fairly and accurately present the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date, adjusted to give effect (as if such events had occurred on such date) to (i) the Transactions occuring on the Closing Date, (ii) the making of the Initial Term Loans, (iii) the application of the proceeds therefrom as contemplated hereby and (iv) the payment of Transaction Costs. As of the date of such balance sheet and the date hereof, no Loan Party had or has any material liabilities, contingent or otherwise, including liabilities for taxes, long-term leases or forward or long-term commitments, which are not properly reflected on such balance sheet.
(c) Since December 31, 2019, there have been no events, developments or circumstances that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has Loan Parties have heretofore furnished to the Lenders its (i) (A) the consolidated balance sheet sheets and related consolidated statements of operations, comprehensive income, stockholders equity and cash flows (i) of the Company and its consolidated Subsidiaries as of and for the fiscal year years ended December 31July 26, 20152014, reported on July 27, 2013 and July 28, 2012, in each case, audited by and accompanied by the unqualified opinion of Deloitte & Touche LLP, independent registered public accountantsaccounting firm, and (B) the unaudited consolidated balance sheets and related consolidated statements of operations, comprehensive income and cash flows of the Company and its consolidated Subsidiaries as of and for each of the fiscal quarters and the portions of the fiscal year ended October 25, 2014, January 24, 2015 and April 25, 2015 and (ii) (A) the consolidated balance sheet and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows of the Acquired Company and its consolidated subsidiaries as of and for the fiscal years ended January 31, 2015, February 1, 2014 and February 2, 2013, each audited by and accompanied by the unqualified opinion of Deloitte & Touche LLP, independent registered public accounting firm, and (B) the unaudited consolidated balance sheet and related consolidated statements of operations, comprehensive income and cash flows of the Acquired Company and its consolidated subsidiaries as of and for the fiscal quarter and the portion of the fiscal year ended June 30May 2, 20162015. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Company and its Consolidated consolidated Subsidiaries or the Acquired Company and its consolidated subsidiaries, as the case may be, 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 statementsstatements referred to in clauses (i)(B) and (ii)(B) above.
(b) Since June The Borrowers have heretofore furnished to the Lenders a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Company and its consolidated Subsidiaries as of and for the period of 12 consecutive months ended on or about April 30, 20162015, prepared giving effect to the Transactions as if the Transactions had occurred on such date, in the case of such balance sheet, or at the beginning of such period, in the case of such statements of operations. Such pro forma consolidated balance sheet and pro forma statements of operations (i) have been prepared by the Borrowers in good faith based on the same assumptions used to prepare the pro forma financial statements included in the Information Materials (which assumptions are believed on the date hereof by the Borrowers to be reasonable), (ii) are based on the best information available to the Borrowers, (iii) accurately reflect all adjustments necessary to give effect to the Transactions and (iv) present fairly, in all material respects, the pro forma financial position and results of operations of the Company and its consolidated Subsidiaries as of and for the period of 12 consecutive months ended on or about April 30, 2015, as if the Transactions had occurred on such date or at the beginning of such period, as the case may be.
(c) Since July 26, 2014, there has been no event, development or circumstance that has had had, or could would reasonably be expected to have have, a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated a balance sheet and statements of income, stockholders stockholders’ equity and cash flows (i) of the Parent and its Subsidiaries on a Consolidated basis as of and for the fiscal year ended December 312022, 2015, reported audited on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. Such financial statements were prepared in accordance with IFRS consistently applied, present fairly, in all material respects, fairly the financial position and results of operations and cash flows of the Borrower Parent and its Subsidiaries on a Consolidated Subsidiaries basis 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 statementsperiods.
(b) Since June 30No Loan Party has any material liabilities, 2016contingent or otherwise, (ior forward or long-term commitments that are not disclosed in the financial statements referred to in Section 3.4(a) there or in the notes thereto. No Material Adverse Effect has been occurred since December 31, 2022 and no event, other facts or circumstances exist nor has any development or circumstance event occurred that has had or could reasonably be expected expected, individually or in the aggregate, to have a Material Adverse Effect and (ii) other than the business Disclosed Matters, but only to the extent amounts paid in respect of the Borrower and its Restricted Subsidiaries has been conducted only any or all Disclosed Matters do not exceed in the ordinary course consistent with past business practicesaggregate $5,000,000).
(c) Neither All balance sheets, all statements of income and of cash flows and all other financial information of the Borrower nor any Restricted Subsidiary has Parent and its Subsidiaries furnished pursuant to Section 5.1 have been and will for periods following the Effective Date be prepared in accordance with IFRS consistently applied, and do or will present fairly the financial condition of the Persons covered thereby on a Consolidated basis as at the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations dates thereof and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided results of their operations for in the Financial Statementsperiods then ended.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated forecasted balance sheet as and statements of income and cash flows of the Closing Date after giving pro forma effect Parent and its Subsidiaries delivered pursuant to Section 5.1(d) were prepared on a Consolidated basis in good faith on the transactions contemplated by this Agreement, including the repayment basis of the DIP Credit Agreement. Such pro forma balance sheet presents fairlyassumptions stated therein, which assumptions were fair in all material respectslight of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the pro forma balance sheet Parent’s reasonable estimate of its future financial condition and performance, it being understood that such forecasts (i) are subject to significant uncertainties and contingencies, many of which are beyond the Borrower Borrower’s control, that no assurance can be given that any particular projections will be realized, the actual results may differ and its Consolidated Subsidiaries as that such differences may be material and (ii) are not a guarantee of such date in accordance with GAAPperformance.
Appears in 1 contract
Sources: Credit Agreement (Globant S.A.)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year years ended December 31, 20152000 and 2001, reported on by Deloitte & Touche KPMG LLP, independent public accountants, and (ii) as of and for the fiscal quarter quarters and the portion of the fiscal year ended March 31, 2002 and June 30, 20162002, certified by its principal financial officer. 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 consolidated Subsidiaries 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 statements referred to in clause (ii) above. The Borrower and its Subsidiaries do not have any material Guarantees, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected or disclosed in the most recent financial statementsstatements referred to in this paragraph.
(b) Since June 30December 31, 20162001, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(cviii) Neither Annex A of the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, offNew Credit Agreement is hereby amended by replacing such annex in its entirety with Annex I-balance sheet liabilities or partnerships, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial StatementsA attached hereto.
(dix) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as Schedule 2.01 of the Closing Date after giving pro forma effect to the transactions contemplated New Credit Agreement is hereby amended by this Agreement, including the repayment replacing such schedule in its entirety with Schedule 2.01 attached hereto.
(x) Schedule 3.06 of the DIP New Credit Agreement. Such pro forma balance sheet presents fairly, Agreement is hereby amended by replacing such schedule in all material respects, the pro forma balance sheet its entirety with Schedule 3.06 attached hereto.
(xi) Schedule 3.13 of the Borrower and New Credit Agreement is hereby amended by replacing such schedule in its Consolidated Subsidiaries as of such date in accordance entirety with GAAPSchedule 3.13 attached hereto.
Appears in 1 contract
Sources: Termination and Replacement Agreement (Waddell & Reed Financial Inc)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as the audited financial statements of the Borrower and its Subsidiaries for the fiscal year years ended December 31, 20152013, reported on by Deloitte & Touche LLPDecember 31, independent public accountants2014, and December 31, 2015 and (ii) as interim financial statements of the Borrower and its Subsidiaries for the each fiscal quarter ending after December 31, 2014, through and including the portion of most recent fiscal quarter ended at least 45 days prior to the fiscal year ended June 30, 2016Effective Date. Such financial statements present fairly, fairly in all material respects, respects the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) Since June 30, 2016, (i) there The Borrower has been no event, development or circumstance that has had or could reasonably be expected heretofore furnished to have a Material Adverse Effect and (ii) the business Lenders pro forma consolidated financial statements of the Borrower and its Restricted Subsidiaries has giving effect to the Transactions for the twelve month period ended as of the last day of the Borrower’s fiscal year ended December 26, 2015. Such pro forma consolidated financial statements have been conducted only prepared in good faith by the ordinary course consistent with past business practicesBorrower, based on assumptions that at the time prepared were believed by the Borrower to be reasonable, and accurately reflect all adjustments required to be made to give effect to the Transactions and present fairly in all material respects on a pro forma basis the pro forma consolidated financial position of Borrower and its consolidated Subsidiaries as of such date, assuming that the Transactions had actually occurred at such date; provided that such pro forma balance sheet may exclude the effects of purchase accounting adjustments.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities contingent or partnershipsotherwise, liabilities for taxes, unusual or forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which that are not disclosed in the financial statements referred to in Section 3.4(a) or reflected (b) or provided for in the Financial Statementsnotes thereto. No Material Adverse Effect has occurred since December 31, 2015.
(d) All balance sheets, all statements of income and of cash flows and all other financial information of the Borrower and its Subsidiaries furnished pursuant to Section 5.1(a) or Section 5.1(b) have been and will for periods following the Effective Date be prepared in accordance with GAAP consistently applied and do or will present fairly in all material respects the consolidated financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended.
(e) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated forecasts prepared by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet management of the Borrower and its Consolidated Subsidiaries as of balance sheets, income statements and cash flow statements on a quarterly basis for the first two years following the Effective Date and on an annual basis for the next three years thereafter (such date forecasts to be prepared in accordance with GAAPGAAP and with adequate text explaining the assumptions from which they were prepared). Such forecasts were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable estimate of its future financial condition and performance, it being understood that such forecasts (i) are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material and (ii) are not a guarantee of performance.
Appears in 1 contract
Sources: Credit Agreement (Formfactor Inc)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30March 31, 2016. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since June 30March 31, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Existing Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Revolving Credit Agreement (Halcon Resources Corp)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its the audited consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2017, and the related consolidated statements of income, stockholders equity income and cash flows (i) as of and the Borrower for the fiscal year ended December 31, 2017, (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 2018, and the related consolidated statements of income and cash flows of the Borrower for the fiscal quarter ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) audited statements of revenues and direct operating expenses of the oil and gas properties to be acquired from the Contributors for each of the three years ended December 31, 2015, reported on by Deloitte & Touche LLP2016, independent public accountantsand 2017 and the unaudited interim statements of revenues and direct operating expenses for the three month periods ended March 31, 2017 and March 31, 2018, and statements of assets acquired and liabilities assumed as of December 31, 2017 and March 31, 2018, and (iiiv) unaudited pro forma condensed consolidated financial statements and accompanying notes as of and for the fiscal quarter three months ended March 31, 2018 and for the portion of the fiscal year ended June 30December 31, 20162017, which have been prepared by Borrower based on the materials described in the foregoing clauses (i), (ii) and (iii) for the year ended December 31, 2017 and for the three months ended March 31, 2018. Such financial statements present fairly, fairly in all material respects, respects the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities contingent or partnershipsotherwise, liabilities for taxes, unusual or forward or long-term commitments that are not disclosed in the financial statements referred to in Section 3.4(a) or unrealized in the notes thereto. No Material Adverse Effect has occurred since December 31, 2017, and no other facts or anticipated losses from any unfavorable commitments circumstances exist that have had or could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(c) All balance sheets, all statements of income and of cash flows and all other than financial information of the Gas Balancing Obligations Borrower and Subsidiaries furnished pursuant to Section 5.1(a) and (b) have been and will for periods following the Effective Date be prepared in accordance with GAAP consistently applied with the financial statements referred to in Section 3.4(a), and do or will present fairly in all material respects the consolidated financial condition of the Persons covered thereby as at the dates thereof and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided results of their operations for in the Financial Statementsperiods then ended.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated forecasted balance sheet as and statements of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet income and cash flows of the Borrower and its Consolidated Subsidiaries as delivered pursuant to Section 5.1(e) were prepared in good faith on the basis of such date in accordance with GAAPthe assumptions stated therein, which assumptions were believed to be reasonable at the time made.
Appears in 1 contract
Sources: Credit Agreement (Comstock Oil & Gas Investments, LLC)
Financial Condition; No Material Adverse Effect. (a) The Borrower has Loan Parties have heretofore furnished to the Lenders its (i)(A) the consolidated balance sheet sheets and related statements of incomeoperations, stockholders shareholders’ equity and cash flows (i) of the Company and its consolidated Subsidiaries as of and for the fiscal year years ended December July 30, 2011 and July 31, 20152010, reported on each audited by and accompanied by the unqualified opinion of Deloitte & Touche LLP, independent registered public accountantsaccounting firm, and (iiB) the unaudited consolidated balance sheets and related statements of operations, shareholders’ equity and cash flows of the Company and its consolidated Subsidiaries as of and for each of the fiscal quarters and the portions of the fiscal year ended October 29, 2011, January 28, 2012 and April 28, 2012 and (ii)(A) the consolidated balance sheets and related statements of operations and comprehensive income, stockholders’ equity and cash flows of the Acquired Company and its consolidated subsidiaries as of and for the fiscal years ended January 28, 2012 and January 29, 2011, each audited by and accompanied by the unqualified opinion of Ernst & Young LLP, independent registered public accounting firm, and (B) the unaudited consolidated balance sheet and related statements of operations and cash flows of the Acquired Company and its consolidated subsidiaries as of and for the fiscal quarter and the portion of the fiscal year ended June 30April 28, 20162012. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Company and its Consolidated consolidated Subsidiaries or the Acquired Company and its consolidated subsidiaries, as the case may be, 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 statementsstatements referred to in clauses (i)(B) and (ii)(B) above.
(b) Since June 30The Loan Parties have heretofore furnished to the Lenders a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Company and its consolidated Subsidiaries as of and for the period of 12 consecutive months ended January 28, 20162012, prepared giving effect to the Transactions as if the Transactions had occurred on such date, in the case of such balance sheet, or at the beginning of such period, in the case of such statements of operations. Such pro forma consolidated balance sheet and pro forma statements of operations (i) have been prepared by the Company in good faith based on the same assumptions used to prepare the pro forma financial statements included in the Information Materials (which assumptions are believed on the Second Restatement Effective Date by the Borrowers to be reasonable), (ii) are based on the best information available to the Borrowers, (iii) accurately reflect all adjustments necessary to give effect to the Transactions and (iv) present fairly, in all material respects, the pro forma financial position and results of operations of the Company and its consolidated Subsidiaries as of and for the period of 12 consecutive months ended on January 28, 2012, as if the Transactions had occurred on such date or at the beginning of such period, as the case may be.
(c) Except as disclosed in the financial statements referred to above or the notes thereto or in the Information Materials and except for the Disclosed Matters, after giving effect to the Transactions, neither the Company nor any Subsidiary has, as of the Second Restatement Effective Date, any material contingent liabilities, material unusual long-term commitments or material unrealized losses.
(d) Since July 30, 2011, there has been no event, development or circumstance that has had had, or could reasonably be expected to have have, a Material Adverse Effect and (ii) material adverse effect on the business business, assets, results of operations or financial conditions of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations Company and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial StatementsSubsidiaries, taken as a whole.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Ascena Retail Group, Inc.)
Financial Condition; No Material Adverse Effect. (a) The Borrower Parent has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity income and cash flows (i) as of and for the fiscal year ended December 31, 20152017, reported on by Deloitte & Touche LLP, 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, 2016Administrative Agent. Such financial statements present fairly, in all material respects, fairly the financial position and results of operations and cash flows of the Borrower Parent and its Consolidated consolidated Subsidiaries 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 statementsadjustments.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower Parent nor any Restricted Subsidiary of its Subsidiaries, or the Greens Creek Joint Venture has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities contingent or partnershipsotherwise, liabilities for taxes, unusual or forward or long-term commitments that are not disclosed in the most recent financial statements delivered to the Administrative Agent or unrealized or anticipated losses from any unfavorable commitments (in the notes thereto other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are those liabilities not referred required under GAAP to or reflected or be provided for or disclosed in the Financial Statementsmost recently delivered financial statements or notes thereto, those liabilities that have been disclosed in the Disclosure Schedules and liabilities in the ordinary course of business since the date of the most recently delivered financial statements. No Material Adverse Effect has occurred since December 31, 2017, and no other facts or circumstances exist that have had or would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(dc) The Borrower has heretofore furnished to the Lenders its pro forma consolidated Except as disclosed in any SEC filings, all balance sheet as sheets, all statements of income and of cash flows and all other financial information of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower Parent and its Consolidated Subsidiaries as of such date furnished pursuant to Section 5.1 have been and will for periods following the Effective Date be prepared in accordance with GAAPGAAP consistently applied with the financial statements referred to in Section 3.4(a), and do or will present fairly the consolidated financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower Parent Guarantor has heretofore furnished to the Lenders (i) its consolidated balance sheet and related statements of income, stockholders stockholders’ equity and comprehensive income, and cash flows (i) as of and for the fiscal year ended December 31, 2015, 2013 and reported on by Deloitte & Touche LLP, independent public accountants, accountants and (ii) its unaudited consolidated balance sheet and related statements of income, stockholders’ equity and comprehensive income, and cash flows as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 20162014. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Parent Guarantor and its Consolidated Subsidiaries as of such dates and for such period in accordance with GAAP.
(b) The Parent Guarantor has heretofore furnished to the Lenders (i) Kodiak’s consolidated balance sheet and related statements of income, stockholders’ equity and comprehensive income, and cash flows as of and for the fiscal year ended December 31, 2013 and reported on by Ernst & Young LLP, independent public accountants and (ii) Kodiak’s unaudited consolidated balance sheet and related statements of income, stockholders’ equity and comprehensive income, and cash flows as of and for the fiscal quarter ended June 30, 2014. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Kodiak and its consolidated Subsidiaries 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.
(bc) The Parent Guarantor has heretofore furnished to the Lenders (i) the unaudited pro forma combined balance sheet and related statements of income, stockholders’ equity and comprehensive income, and cash flows as of and for the fiscal year ended December 31, 2013 after giving effect to the Acquisition and (ii) the unaudited pro forma combined balance sheet and related statements of income, stockholders’ equity and comprehensive income, and cash flows as of and for the fiscal quarter ended June 30, 2014 after giving effect to the Acquisition. Such financial statements present fairly, in all material respects, the pro forma combined financial position and results of operations and cash flows of the Parent Guarantor and its Consolidated Subsidiaries and Kodiak and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP.
(d) Since June 30, 20162014, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect Effect; provided, that this representation and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practiceswarranty shall not be deemed to be made or re-made during any Investment Grade Rating Period.
(ce) Neither As of the Borrower date of this Agreement, neither the Parent Guarantor nor any Restricted Subsidiary other Credit Party has on the date hereof any material Indebtedness Debt (including Disqualified Capital Stock) or any material contingent liabilities, material off-balance sheet liabilities or partnerships, material liabilities for taxesTaxes, material unusual forward or long-term commitments or material unrealized or anticipated losses from any unfavorable commitments (other than commitments, that are required to be disclosed in the Gas Balancing Obligations Financial Statements by GAAP and the Swap Agreements listed on Schedule 7.20) which are not so referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished Statements or otherwise disclosed prior to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect date hereof in writing to the transactions contemplated by this Agreement, including Administrative Agent and the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAPLenders.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has Borrowers have heretofore furnished to Administrative Agent and the Lenders its the consolidated balance sheet and statements of incomeoperations, stockholders stockholders’ equity and cash flows (i) of the Company and its Consolidated Subsidiaries as of and for the fiscal year Fiscal Year ended December 31, 20152018, reported on by Deloitte & Touche ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. Such financial statements are prepared in accordance with GAAP and present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Company and its Consolidated Subsidiaries as of such dates date and for such periods period in accordance with GAAP.
(b) The Borrowers has heretofore furnished to Administrative Agent and the Lenders the unaudited consolidated balance sheet and statements of operations, stockholders’ equity and cash flows of the Borrowers and its Consolidated Subsidiaries as of and for the Fiscal Quarters ended March 31, 2019, June 30, 2019 and September 30, 2019, reported on by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants. Such financial statements are prepared in accordance with GAAP and present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its Consolidated Subsidiaries as of such date and for such period in accordance with GAAP, subject to year-end audit adjustments except as otherwise set forth therein and except for the absence of footnotes in the case of the unaudited quarterly financial statementsand year-end adjustments.
(bc) Since June 30the Third Amendment Effective Date, 2016, (i) there has been no event, development or circumstance that has had or could would reasonably be expected to have a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(cd) Neither the Borrower any Borrowers nor any Restricted Subsidiary has has, on the date hereof after giving effect to the Transactions (as defined in the Term Loan Credit Agreement), any material Indebtedness 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 (other than commitments, except for the Gas Balancing Obligations and Term Loans under the Swap Agreements listed on Schedule 7.20) which are not Term Loan Credit Agreement or as referred to or reflected or provided for in the Financial Statementsfinancial statements delivered to Administrative Agent and Lenders as set forth in Schedule 9.1.4.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby.
(b) The unaudited consolidated balance sheet of the Borrower dated September 30, 2012 and the related consolidated statements of income and cash flows of the Borrower for the three month period ended September 30, 2012 (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) The Borrower has heretofore furnished to Administrative Agent (for distribution to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. 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, subject to year-end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statements.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect and (iiLenders) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practices.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 2012, and the related consolidated pro forma statement of income of the Borrower and its Subsidiaries for the twelve-month period then ended (such pro forma balance sheet and statement of income, the “Pro Forma Financial Statements”), which have been prepared giving effect to the Transactions. The Pro Forma Financial Statements have been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis and in accordance with GAAPGAAP the estimated financial position of the Borrower and its Subsidiaries as at September 30, 2012, and their estimated results of operations for the periods covered thereby, assuming that the Transactions had actually occurred at such date or at the beginning of such period.
(d) The Borrower and its Subsidiaries have no Indebtedness, obligation or other unusual forward or long term commitment which is not fairly reflected in the foregoing financial statements or in the notes thereto.
(e) Since December 31, 2011, there has been no Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Lmi Aerospace Inc)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of incomeconsolidated operations and retained earnings, stockholders consolidated shareholders' equity and consolidated cash flows (i) as of and for the fiscal year ended December 31February 24, 20152007, reported on by Deloitte & Touche Pricewaterhouse Coopers LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30September 8, 20162007, 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 Borrower and the Subsidiaries (other than the Target and its Consolidated Subsidiaries) 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 statements referred to in CLAUSE (ii) above.
(b) The Borrower has heretofore furnished to the Lenders the consolidated balance sheet and statements of consolidated operations and retained earnings, consolidated shareholders' equity and consolidated cash flows of the Target and its Subsidiaries (i) as of and for the fiscal year ended February 3, 2007, reported on by Deloitte & Touche, LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended August 4, 2007, certified by the Target'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 Target and its Subsidiaries 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 June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected statements referred to have a Material Adverse Effect and in CLAUSE (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesabove.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma unaudited consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of September 8, 2007, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the twelve month period then ended, certified by the chief financial officer, senior vice president-finance, or treasurer of the Borrower fairly present the consolidated financial condition of Borrower and its Subsidiaries as at such date and the consolidated results of operations of the Borrower and its Subsidiaries for the period ended on such date, in accordance with GAAPthe case of the consolidated balance sheet, giving pro forma effect to the Transaction.
(d) The consolidated forecasted balance sheet, statements of income and cash flows of the Borrower and its Subsidiaries delivered to the Lenders were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, a reasonable estimate of the Borrower's and its Subsidiaries future financial condition and performance, giving pro forma effect to the Transaction.
(e) Since the date of the Acquisition Agreement, no change, event or circumstance shall have occurred that has resulted or could reasonably be expected to result in a Closing Date Material Adverse Effect.
Appears in 1 contract
Sources: Senior Secured Bridge Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its (i) the audited consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2018, and the related consolidated statements of income, stockholders equity income and cash flows (i) as of and the Borrower for the fiscal year ended December 31, 20152018, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 2019, and the related consolidated statements of income and cash flows of the Borrower for the fiscal quarter ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) audited consolidated balance sheet of ▇▇▇▇▇ Park and its Subsidiaries as of December 31, 2018, and the portion related consolidated statements of income and cash flows of ▇▇▇▇▇ Park for the fiscal year ended June 30December 31, 20162018, and (iv) the unaudited consolidated balance sheet of ▇▇▇▇▇ Park and its Subsidiaries as of March 31, 2019, and the related consolidated statements of income and cash flows of ▇▇▇▇▇ Park for the fiscal quarter ended March 31, 2019. Such financial statements present fairly, fairly in all material respects, respects the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end year‑end audit adjustments and the absence of footnotes in the case of the unaudited quarterly financial statementsstatements referred to in clauses (ii) and (iv) above.
(b) Since June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities contingent or partnershipsotherwise, liabilities for taxes, unusual or forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which that are not disclosed in the financial statements referred to in Section 3.4(a) or reflected or provided for in the Financial Statementsnotes thereto. No Material Adverse Effect has occurred since December 31, 2018, and no other facts or circumstances exist that have had or could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(dc) The Borrower has heretofore furnished to the Lenders its pro forma consolidated All balance sheet as sheets, all statements of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment income and of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in cash flows and all material respects, the pro forma balance sheet other financial information of the Borrower and its Consolidated Subsidiaries as of such date furnished pursuant to Section 5.1(a) and (b) have been and will for periods following the Effective Date be prepared in accordance with GAAPGAAP consistently applied with the financial statements referred to in Section 3.4(a), and do or will present fairly in all material respects the consolidated financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, and otherwise expressly noted therein; (ii) fairly present the financial condition of EMS and its Subsidiaries as of the date thereof and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. Such financial statements present fairly, in all material respects, the financial position and their 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 cash flows (iii) show all material indebtedness and other material liabilities, direct or contingent, of the Borrower EMS and its Consolidated Subsidiaries as of such dates the date thereof, including material liabilities for taxes, commitments 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 statementsIndebtedness.
(b) Since June 30, 2016, The Interim Financial Statements (i) there has been no eventwere prepared in accordance with GAAP consistently applied throughout the period covered thereby, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect except as otherwise expressly noted therein; (ii) fairly present the financial condition of EMS and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) the business show all material indebtedness and other material liabilities, direct or contingent, of EMS and its Subsidiaries as of the Borrower date thereof, including material liabilities for taxes, material commitments and its Restricted Subsidiaries has been conducted Indebtedness, subject only to customary year-end adjustments which are not expected to be and are not reasonably likely to be material in the ordinary course consistent with past business practicesamount or kind.
(c) Neither the Borrower nor any Restricted Subsidiary has on From the date hereof of the Interim Financial Statements to and including the Closing Date, there has been no Disposition by EMS or any Subsidiary, or any Involuntary Disposition, of any material Indebtedness part of the business or property of EMS and its Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or property (including Disqualified Capital Stockany Equity Interests of any other Person) or any contingent liabilitiesmaterial in relation to the consolidated and consolidating financial condition of EMS and its Subsidiaries, off-balance sheet liabilities or partnershipstaken as a whole, liabilities for taxesin each case, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are is not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower foregoing financial statements or in the notes thereto or has heretofore furnished not otherwise been disclosed in writing to the Lenders its pro forma consolidated balance sheet as of on or prior to the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAPDate.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015Audited Financial Statements, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated as of March 31, 2014 and for the fiscal quarter and the portion of the fiscal year ended June 30, 20162014, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarters, certified by its chief accounting officer and (iii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 2014 and giving pro forma effect to the Transaction, and the related consolidated pro forma statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter, certified by its chief accounting officer. Such financial statements referred to in clauses (i) and (ii) above present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated consolidated Subsidiaries 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 statementsstatements referred to in clause (ii) above.
(b) Since June 30, 2016, The most recent financial statements furnished pursuant to Section 6.01(a) fairly present (i) the financial position of the Borrower and its consolidated Subsidiaries as of the date thereof and (ii) the results of operations and cash flows of the Borrower and its consolidated Subsidiaries for the period covered thereby, all in accordance with GAAP.
(c) The most recent financial statements furnished pursuant to Section 6.01(b) fairly present (i) the financial position of the Borrower and its consolidated Subsidiaries as of the date thereof and (ii) the results of operations and cash flows of the Borrower and its consolidated Subsidiaries for the period covered thereby, all in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes.
(d) Since the date of the Audited Financial Statements, there has been no event, development change or circumstance condition, either individually or in the aggregate, that has had resulted in, or could reasonably be expected to have result in, a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower Holdings has heretofore furnished to the Lenders its consolidated the balance sheet and statements of income, stockholders shareholders’ equity and cash flows (i) of Holdings and its Subsidiaries on a consolidated basis as of and for the fiscal year ended December 31June 30, 20152024, reported on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. Such financial statements present fairly, fairly in all material respects, respects the financial position and results of operations and cash flows of the Borrower Holdings and its Consolidated consolidated Subsidiaries 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 June 30, 2016, (i) there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect 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) Neither the Borrower Holdings nor any Restricted Subsidiary thereof has on the date hereof any material Indebtedness (including Disqualified Capital Stock) or any contingent liabilities, off-balance sheet liabilities contingent or partnershipsotherwise, liabilities for taxes, unusual or forward or long-term commitments that are not disclosed in the financial statements referred to in Section 3.4(a) or unrealized in the notes thereto. No Material Adverse Effect has occurred since December 31, 2023 and no other facts or anticipated losses from circumstances exist nor has any unfavorable commitments development or event occurred that have had or could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(c) All balance sheets, all statements of income and of cash flows and all other than financial information of Holdings and its Subsidiaries furnished pursuant to Section 5.1 have been and will for the Gas Balancing Obligations periods following the Closing Date be prepared in accordance with GAAP consistently applied with the financial statements referred to in Section 3.4(a), and do or will present fairly in all material respects the consolidated financial condition of the Persons covered thereby as at the dates thereof and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided results of their operations for in the Financial Statementsperiods then ended.
(d) [Intentionally Omitted].
(e) The Borrower has heretofore furnished consolidated and, with respect to the Lenders its pro forma consolidated Loan Parties only, consolidating forecasted balance sheet and statements of income and cash flows of Holdings and its Subsidiaries delivered pursuant to Section 5.1(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, Holdings’ best estimate of its future financial condition and performance.
(f) The information set forth in each Borrowing Base Certificate is true and correct in all material respects as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as date of such date in accordance with GAAPBorrowing Base Certificate.
Appears in 1 contract
Sources: Credit Agreement (IBEX LTD)
Financial Condition; No Material Adverse Effect. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows each Lender (i) as of and for the fiscal year ended December 31, 2015, reported on by Deloitte & Touche LLP, independent public accountants, Audited Financial Statements and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence related consolidated statements of footnotes income, retained earnings and cash flow of the Borrower and its Subsidiaries for the nine-month period ended March 31, 2010 (the “Unaudited Financial Statements”). The Audited Financial Statements and the Unaudited Financial Statements were prepared in conformity with GAAP (subject, in the case of the unaudited quarterly Unaudited Financial Statements, to year-end adjustments and except for the absence of notes thereto), and, in each case, such financial statementsstatements fairly present the consolidated financial condition and consolidated results of operations of the Borrower and its Subsidiaries as of the date of such financial statements and for the periods to which they relate. Since the date of the Current SEC Report, except in connection with a completed acquisition, there are no obligations or liabilities, contingent or otherwise, of the Borrower or any of its Subsidiaries which are not reflected or disclosed on such financial statements or such Current SEC Report, other than obligations of the Borrower and its Subsidiaries incurred in the ordinary course of business.
(b) Since June 30the date of the Audited Financial Statements, 2016, (i) there has been no eventevent or circumstance, development either individually or circumstance in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(c) Neither the Borrower nor any Restricted Subsidiary has on the date hereof any material Indebtedness (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 (other than the Gas Balancing Obligations and the Swap Agreements listed on Schedule 7.20) which are not referred to or reflected or provided for in the Financial Statements.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as at March 31, 2010, and the related consolidated pro forma statement of income of the Borrower and its Subsidiaries for the nine months then ended, certified by a Responsible Officer of the Borrower, copies of which have been furnished to each Lender pursuant to Section 4.01(a)(viii), fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such date and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date.
(d) The financial projections delivered pursuant to Section 6.03(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed by management of the Borrower to be fair in light of the conditions existing at the time of delivery of such date in accordance with GAAPfinancial projections (it being understood that projections are subject to uncertainties and contingencies and that actual results during the period or periods covered by such projections may differ materially from such projections).
(e) The Borrower is, and the Borrower and its Subsidiaries (on a consolidated basis) are, Solvent.
Appears in 1 contract
Financial Condition; No Material Adverse Effect. (a) The Borrower has Borrowers have heretofore furnished to Administrative Agent and the Lenders its the consolidated balance sheet and statements of incomeoperations, stockholders stockholders’ equity and cash flows (i) of the Company and its Consolidated Subsidiaries as of and for the fiscal year Fiscal Year ended December 31, 201520152018, reported on by Deloitte & Touche ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2016. Such financial statements are prepared in accordance with GAAP and present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower Company and its Consolidated Subsidiaries as of such dates date and for such periods period in accordance with GAAP.
(b) [Reserved.]The Borrowers has heretofore furnished to Administrative Agent and the Lenders the unaudited consolidated balance sheet and statements of operations, stockholders’ equity and cash flows of the Borrowers and its Consolidated Subsidiaries as of and for the Fiscal Quarters ended March 31, 2019, June 30, 2019 and September 30, 2019, reported on by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants. Such financial statements are prepared in accordance with GAAP and present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its Consolidated Subsidiaries as of such date and for such period in accordance with GAAP, subject to year-end audit adjustments except as otherwise set forth therein and except for the absence of footnotes in the case of the unaudited quarterly financial statementsand year-end adjustments.
(bc) Since June 30Closingthe Third Amendment Effective Date, 2016, (i) there has been no event, development or circumstance that has had or could would reasonably be expected to have a Material Adverse Effect and (ii) the business of the Borrower and its Restricted Subsidiaries has been conducted only in the ordinary course consistent with past business practicesEffect.
(cd) Neither the Borrower any Borrowers nor any Restricted Subsidiary has has, on the date hereof after giving effect to the Transactions (as defined in the Term Loan Credit Agreement), any material Indebtedness 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 (other than commitments, except for the Gas Balancing Obligations and Term Loans under the Swap Agreements listed on Schedule 7.20) which are not Term Loan Credit Agreement or as referred to or reflected or provided for in the Financial Statementsfinancial statements delivered to Administrative Agent and Lenders as set forth in Schedule 9.1.4.
(d) The Borrower has heretofore furnished to the Lenders its pro forma consolidated balance sheet as of the Closing Date after giving pro forma effect to the transactions contemplated by this Agreement, including the repayment of the DIP Credit Agreement. Such pro forma balance sheet presents fairly, in all material respects, the pro forma balance sheet of the Borrower and its Consolidated Subsidiaries as of such date in accordance with GAAP.
Appears in 1 contract