Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements: (i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and (ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company. (b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b). (c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Red Rock Resorts, Inc.), Membership Interest Purchase Agreement (Station Casinos LLC)
Financial Statements and Condition. (a) Prior All annual and quarterly financial statements delivered by the Credit Parties to the execution of this AgreementAgent or any Lender (including, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedulewithout limitation, all such financial statements were delivered in connection with the Agent’s or Lenders’ due diligence and underwriting with respect to this transaction), have been prepared in accordance with GAAP on a consistent basis (except for the absence of footnotes and changes resulting from audits and subject to year-end audit adjustments as to the interim statements) and fairly present the financial condition of the Credit Parties and their Subsidiaries as at such dates and the results of their operations and changes in financial position for the respective periods then ended. All monthly financial statements delivered by the Credit Parties to the Agent or any Lender (including, without limitation, all such financial statements delivered in connection with the Agent’s or Lenders’ due diligence and underwriting with respect to this transaction) fairly present the financial condition of the Credit Parties and their Subsidiaries as at such dates and the results of their operations for the respective periods then ended. As of the dates of such financial statements, no Credit Party or any Subsidiary had any material obligation, contingent liability, liability for taxes or long-term lease obligation which is not reflected in such financial statements or in the case notes thereto. With respect to the Credit Parties, other than the ▇▇▇▇▇▇▇▇▇▇’▇ Entity, since June 30, 2007, there has been no Material Adverse Occurrence and with respect to the ▇▇▇▇▇▇▇▇▇▇’▇ Entity, since December 31, 2007, there has been no Material Adverse Occurrence.
(b) All financial projections and certificates delivered by the Credit Parties to the Agent or any Lender (including, without limitation, all such financial information delivered in connection with the Agent’s or Lenders’ due diligence and underwriting with respect to this transaction) have been prepared in good faith, based on assumptions which, in the reasonable opinion of the Unaudited Financial Statements Credit Parties, were reasonable when made and reflect, in the effect reasonable opinion of which is notthe Credit Parties, reasonable estimates of the results of operation and other information projected therein. To the knowledge of the Credit Parties, no facts exist that (individually or in the aggregate, material) and fairly present would result in all any material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to change in this Section 3.08 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesprojections.
Appears in 2 contracts
Sources: Credit Agreement (Sunlink Health Systems Inc), Credit Agreement (Sunlink Health Systems Inc)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited consolidated balance sheets of the Company and its consolidated Subsidiaries the Subsidiary as of December 31, 20141994, 2013 1995 and 20121996, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ stockholders' equity and cash flows for the portion each of the fiscal year periods then ended, certified by Seller's Accountant. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all All such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries the Subsidiary as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary arethereby except, and for all periods referred to in this Section 3.08 have been, consolidated with those the case of the Companyunaudited financial statements, for the absence of footnotes and normal year end adjustments which an audit would reveal.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleDate, since the Unaudited Audited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any material adverse change in the Business or Condition of the Company, other than those occurring as a result of general economic or financial conditions or other developments which are not unique to the Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require Subsidiary but also affect other Persons who participate or are engaged in the consent lines of Purchaser under Section 6.04(b)business in which the Company and the Subsidiary participate or are engaged.
(c) Since the Audited Financial Statement Date, neither the Company nor the Subsidiary has incurred any liabilities of a kind required by GAAP to be set forth on a balance sheet and which in the aggregate are material to the Business or Condition of the Company, other than liabilities incurred in the ordinary course of business.
(d) Except as expressly authorized or required by this Agreement, since December 31, 1996 neither the Company nor the Subsidiary has, and Seller covenants and agrees that from the date of this Agreement until the Closing Date neither the Company nor the Subsidiary will have,:
(i) amended its certificate of incorporation or by-laws or comparable instruments or merged with or into or consolidated with any other Person, or changed or agreed to rearrange in any material respect the character of its business (except that the Company may amend its certificate of incorporation to change its name as and to the extent disclosed in the Financial Statements, contemplated by Section 12.16);
(ii) issued, sold or purchased options or rights to subscribe to, or entered into any contracts or commitments to issue, sell or purchase, any shares of its capital stock;
(iii) entered into, amended or terminated any (x) employment agreement, (y) adopted, entered into or amended any arrangement which is, or would be, a Company Plan or (z) made any change in any actuarial methods or assumptions used in funding any Company Plan or in the assumptions or factors used in determining benefit equivalences thereunder;
(iv) issued any note, bond or other debt security, created, incurred or assumed any indebtedness for Liabilities incurred after June 30borrowed money, 2015 or guaranteed any indebtedness for borrowed money or any capitalized lease obligation, in each case in excess of $25,000 individually or in the aggregate;
(v) declared, set aside or paid any dividends or declared or made any other distributions of any kind to its stockholders, or made any direct or indirect redemption, retirement, purchase or other acquisition of any shares of its capital stock other than cash distributions to its stockholders;
(vi) knowingly waived any right of material value to its business;
(vii) made any change in its accounting methods or practices or made any changes in depreciation or amortization policies or rates adopted by it or made any material write-down of inventory or material write-off as uncollectible of accounts receivable;
(viii) made any wage or salary increase or other compensation payable or to become payable or bonus, or increase in any other direct or indirect compensation, for or to any of its officers, directors, employees, consultants, agents or other representatives, or any accrual for or commitment or agreement to make or pay the same, other than increases made in the ordinary course consistent with past practice;
(ix) entered into any transactions with any of its Affiliates, stockholders, officers, directors, employees, consultants, agents or other representatives (other than employment arrangements made in the ordinary course of business consistent with past practice and expressly included in the calculation practice), or any Affiliate of Final Assumed Liabilitiesany stockholder, and officer, director, consultant, employee, agent or other representative;
(iiix) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor made any payment or commitment to pay any severance or termination pay to any Person or any of its Subsidiaries has officers, directors, employees, consultants, agents or other representatives, other than payments or commitments to pay such Persons or its officers, directors, employees in the ordinary course of business;
(A) entered into any Liabilitieslease (as lessor or lessee), whether (B) sold, abandoned or not such Liabilities would be required by GAAP to be reflected made any other disposition of any of its assets or properties other than in the ordinary course of business consistent with past practice; or (C) granted or suffered any Lien on a consolidated balance sheet any of its assets or properties other than Permitted Liens and sales of inventory in the ordinary course of business;
(xii) except for inventory or equipment acquired in the ordinary course of business, made any acquisition of all or any part of the Company and assets, properties, capital stock or business of any other Person;
(xiii) paid, directly or indirectly, any of its Subsidiariesliabilities before the same became due in accordance with its terms or otherwise than in the ordinary course of business, except to obtain the benefit of discounts available for early payment; or
(xiv) made any capital expenditures or commitments for capital expenditures in an aggregate amount exceeding $25,000.
Appears in 2 contracts
Sources: Stock Purchase Agreement (National Tobacco Co Lp), Stock Purchase Agreement (National Tobacco Co Lp)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true The Agent and complete copies each Lender have ---------------------------------- received (i) audited consolidated financial statements of the following Parent and its Subsidiaries for the Fiscal Year ending July 31, 2001, and (ii) unaudited consolidated financial statements:
statements of the Parent and its Subsidiaries as at and for the fiscal quarter ending October 31, 2001. Such financial statements present fairly in accordance with GAAP (i) the audited balance sheets financial position of the Company Parent and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results date of such audits; and
balance sheet and (ii) the unaudited balance sheets results of operations of the Company Parent and its consolidated Subsidiaries for such period (except in the case of interim financial statements, for the absence of notes and normal year end adjustments). To the best of the Parent's and the Borrowers' knowledge, (x) neither the Parent nor any Borrower has material direct or indirect contingent liabilities as of June 30such date which are not reserved for in such balance sheet or which in accordance with GAAP would have to be included in footnotes thereto, 2015but have not been so included, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a(y) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP applied on a basis consistently maintained throughout the period involved (except in the case of interim financial statements, for the absence of footnotes notes and changes resulting from audits and year-normal year end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Companyadjustments).
(b) Except for To the execution and delivery best of this Agreement the Parent's and the transactions to take place pursuant hereto on or prior Borrowers' knowledge, there has been no Material Adverse Change to the Closing Date Parent and as disclosed in Section 3.08 of the Disclosure Scheduleits Subsidiaries since October 31, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)2001.
(c) Except (i) as The Agent and to each Lender have received the extent disclosed in the Financial StatementsParent's forecast dated October 10, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) 2001 of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet future financial performance of the Company Parent and its Subsidiaries. The projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Credit Parties to be reasonable at the time made and as of the date hereof, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by such projections may differ from the projected results. No fact is known on the date hereof to any executive officer of the Parent or any other Credit Party which would have a Material Adverse Effect on the Parent and its Subsidiaries that has not been set forth in the financial statements referred to in this (S) 5.6 or disclosed herein or in the schedules attached hereto or otherwise disclosed to the Agent in writing prior to the Closing Date.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has Sellers have delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited unaudited balance sheets sheet of the Company and its consolidated Subsidiaries Business as of December 31, 2014, 2013 and 20122000, and the related audited consolidated statements unaudited statement of operations, members’ equity operations for the fiscal year then ended and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited consolidated balance sheets sheet of the Company and its consolidated Subsidiaries Business as of June April 30, 20152001 (the "April 30 Balance Sheet"), and the related unaudited consolidated statements statement of operations, members’ equity and cash flows operations for the portion of four-month period then ended (collectively, the fiscal year then ended"Financial Statements"). Except as set forth in the notes thereto and as disclosed in Section 3.08(aThe Financial Statements were (i) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP GAAP, (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, materialii) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries Business as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred (iii) were compiled from the Books and Records of Sellers regularly maintained by management and used to prepare the Financial Statements in this Section 3.08 have been, consolidated accordance with those of the Companyprinciples stated herein.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleSchedule 2.05(b), since December 31, 2000, the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries Business has been operated in all material respects in the ordinary course, (ii) course and there has not been any Company Material Adverse Effect and material adverse change in the Condition of the Business, other than those occurring as a result of general economic or financial conditions or other developments which are not unique to the Business but also affect other Persons who participate or are engaged in lines of business similar to the Business. Without limiting the generality of the foregoing, except as set forth on Schedule 2.05(b), since December 31, 2000 there has not been any: (i) purchase by Sellers of any real property or other capital assets in excess of $ 25,000 individually or $100,000 in the aggregate, nor has any Seller entered into any agreement to purchase such real property or other capital assets, other than as listed on Schedule 1.01(a)(i) or Schedule 1.01(a)(vii), or as has been sold in the ordinary course since such date; (ii) material change in the conduct of the Business, or any change in Sellers' method of purchase, sale, lease, promotion or operation, or any material delay or postponement of the payment of accounts payable or other liabilities; or (iii) no action has been taken thatchange in the method of accounting or accounting policies of Sellers, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)other than those required by GAAP.
(c) Except (i) as and As of the date hereof, there are no Liabilities of Sellers relating to the extent disclosed in Business, except as set forth on the Financial StatementsApril 30 Balance Sheet, (ii) and except for Liabilities not required under GAAP to be set forth thereon and Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice since April 30, 2001 and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered made available to Purchaser true and complete copies of the following financial statements:
(i) the audited unaudited balance sheets sheet of MPC and the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, 1999 and the related audited unaudited consolidated statements statement of operationsoperations for fiscal years of 1997, members’ equity 1998 and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits1999; and
(ii) the unaudited balance sheets sheet of MPC and the Company and its consolidated Subsidiaries as of June 30July 31, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended2000 (attached as ANNEX I hereto). Except as set forth in the notes thereto and as disclosed in Section 3.08(aSECTION 2.09(a) of the Disclosure ScheduleOF THE DISCLOSURE SCHEDULE, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results statement of operations of the Company MPC and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The Except for those Subsidiaries disclosed in SECTION 2.09(a) OF THE DISCLOSURE SCHEDULE, the financial condition and results statement of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 SECTION 2.09 have been, consolidated with those of MPC. Except as disclosed in SECTION 2.09(a) OF THE DISCLOSURE SCHEDULE, and except for matters reflected or reserved against in the financial statements referred to in clauses (i) and (ii) above (or the notes thereto), as of the date of this Agreement, neither MPC, the Company, nor any Subsidiary has any liabilities or obligations (whether absolute, accrued, contingent, fixed or otherwise, or whether due or to become due) of any nature that would be required by GAAP to be reflected on a consolidated balance sheet of MPC or the Company and Subsidiaries (including the notes thereto), except liabilities or obligations (i) that were incurred in the ordinary course of business consistent with past practice since July 31, 2000, or (ii) that, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect on the Business or Condition of MPC and the Company. At and as of the Closing Date, the total of Indebtedness of the Company, the Subsidiaries and MPC Natural Gas Funding Trust and the face amount of the outstanding preferred trust securities of the Montana Power Capital I (Trust) shall not exceed $488 million.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleSECTION 2.09(b) OF THE DISCLOSURE SCHEDULE, since the Unaudited Interim Financial Statement Date (i) the business of the Company MPC and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included there has not been any material adverse change in the calculation Business or Condition of Final Assumed LiabilitiesMPC, other than those occurring as a result of general economic or financial conditions or other developments which are not unique to MPC and (iii) for Liabilities set forth on Section 3.08(c) the Subsidiaries but also affect to a similar extent other Persons who participate or are engaged in the lines of business in which MPC and the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether participate or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesare engaged.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Waccamaw has delivered to Purchaser Old HomePlace true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company Waccamaw and its consolidated Subsidiaries subsidiaries as of December 31January 30, 20141999, 2013 January 30, 1998 and 2012January 28, 1997 and the related audited consolidated statements of operations, members’ stockholders' equity and cash flows and related notes for each of the fiscal years ended December 31then ended, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLPArth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a4.07(a) of the Waccamaw Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company Waccamaw and its consolidated Subsidiaries subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The Except for those Subsidiaries listed in Section 4.07(a) of the Waccamaw Disclosure Schedule, the financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 4.07 have been, consolidated with those of the CompanyWaccamaw.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 4.07(b) of the Waccamaw Disclosure Schedule, since the Unaudited Financial Statement Date (i) January 30, 1999 the business of the Company Waccamaw and the its Subsidiaries has been operated in all material respects in the ordinary course, (ii) course consistent with past practice and there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed material adverse change in the Financial StatementsBusiness or Condition of Waccamaw, (ii) for Liabilities incurred after June 30, 2015 other than those occurring as a result of general economic or financial conditions or other developments which are not unique to Waccamaw and its Subsidiaries but also affect other Persons who participate or are engaged in the ordinary course lines of business consistent with past practice in which Waccamaw and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether participate or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesare engaged.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Fortress has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited unaudited consolidated balance sheets sheet of the Company and its consolidated Subsidiaries Companies as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June September 30, 2015, 2001 and the related unaudited consolidated statements statement of operations, members’ equity and cash flows income for the portion of nine-month period then ended (collectively, the fiscal year then ended"Financial Statements"). Except as set forth in the notes thereto and as disclosed in Section 3.08(a2.09(a) of the Disclosure Schedule, all such financial statements the Financial Statements were prepared from and are in accordance with the respective books and records of the Companies and are in accordance with GAAP (except for subject to the absence of footnotes footnote disclosure and changes resulting from audits and normal year-end adjustments in the case of the Unaudited Financial Statements the effect of adjustments), which is notchanges, individually or in the aggregate, material) and shall not cause such Financial Statements not to fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries Companies as of the respective dates thereof September 30, 2001 and for the respective periods covered therebynine-month period then ended. The financial condition and results of operations of each Subsidiary and Landmark are, and for all periods referred to in this Section 3.08 2.09 have been, consolidated with those of Galloway. To the CompanyKnowledge of Seller, none of the Companies has any ▇▇▇▇▇▇▇ty or obligation of any kind or manner which is required to be reflected by GAAP, and which was not accurately reflected in the Financial Statements, except for current liabilities arising in the Ordinary Course of Business of any Company subsequent to September 30, 2001, which are accurately reflected on its books and records in a manner consistent with past practice and are set forth in Section 2.09(a) of the Disclosure Schedule.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior hereto, including the sale of the Landmark Assets to the Closing Date Don Galloway pursuant to Section 1.02, and except as disclosed in Section 3.08 S▇▇▇▇▇▇ ▇.▇▇(b) of the Disclosure Schedule, since September 30, 2001, the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has Companies have been operated in all material respects in the ordinary courseOrdinary Course of Business and there has not occurred: (i) to the knowledge of Seller, any change, event or condition (whether or not covered by insurance) that has resulted in, or might reasonably be expected to result in, a material adverse effect on the Business of any Company; (ii) there has not been any acquisition, sale or transfer of any material asset of any Company Material Adverse Effect and other than in the Ordinary Course of Business; (iii) no action any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by any Company or any revaluation by any Company of any of its Assets and Properties; (iv) any declaration, setting aside or payment of a dividend or any other distribution with respect to any LLC Interest or Subsidiary Interest or any direct or indirect redemption, purchase or other acquisition by any Company of any of LLC Interest or Subsidiary Interest or any other payment to any Affiliate of any Company other than payments of compensation and reimbursements of expenses in the Ordinary Course of Business; (v) any Contract described in Section 2.16 entered into by any Company, other than in the Ordinary Course of Business and where a true and correct copy of which has been taken thatprovided to Purchaser, if taken after or any material amendment or termination of, or default under, any such Contract to which any Company is a party or by which it is bound; (vi) any amendment or change to any of the date hereofOrganizational Documents of any Company; (vii) any increase in or modification of the compensation or benefits (monetary or non-monetary) payable or provided or to become payable or provided by any Company to any of their directors, would require managers, members, partners, officers or employees (as the consent case may be) other than as to employees in the Ordinary Course of Purchaser under Section 6.04(bBusiness (which in the aggregate to all employees does not exceed $25,000; (viii) any material change in the interest rate risk management and hedging policies, procedures or practices of any Company, or any failure to comply with such policies, procedures and practices; or (ix) any agreement by any Company to do any of the things described in the preceding clauses (i) through (viii).
(c) Except To the Knowledge of Seller, no Company has any incurred Liabilities other than (i) as and to the extent disclosed those set forth or adequately provided for in the Financial Statements, and (ii) for Liabilities those incurred after June in the Ordinary Course of Business since September 30, 2015 in 2001 (including the ordinary course sale of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Landmark Assets to Don Galloway pursuant to Section 3.08(c1.03(b)). Section 2.09(c) of the Disclosure ScheduleD▇▇▇▇▇▇▇▇▇ ▇▇hedule sets forth as of December 20, neither 2001 the Company nor any principal amount of its Subsidiaries has any LiabilitiesIndebtedness outstanding, whether or not including accrued interest payable and the names and addresses of each borrower, lender and guarantor thereof and a good faith estimate of such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet information as of the Company Closing Date. No Indebtedness incurred or increased between September 30, 2001 and its Subsidiariesthe Closing Date shall have been incurred or increased other than in the Ordinary Course of Business for Business purposes.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to The Audited Financial Statements and the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following Borrower's audited consolidated financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries statements as of December 31, 2014, 2013 and 2012, and for the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years year ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
2006 (iii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein; (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, materialii) and fairly present in all material respects the consolidated financial condition of the Borrower and its Restricted Subsidiaries, as of the dates thereof and results of operations for the periods covered thereby; and (iii) except as specifically disclosed therein or on Schedule 6.14(a), neither the Borrower nor its Restricted Subsidiaries have any material Indebtedness or other material liabilities direct or contingent, as of the Closing Date, including liabilities for Taxes, material commitments or Contingent Obligations.
(b) The unaudited pro forma consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of December 31, 2006 (the "Pro Forma Balance Sheet"), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date or the beginning of such period) to (i) the extensions of credit to be made under this Agreement and (ii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet has been prepared based on assumptions that the Loan Parties believe are reasonable as of the date hereof and as of the Closing Date, and present fairly on a pro forma basis the estimated financial position and results of operations of the Company Borrower and its Restricted Subsidiaries on a consolidated Subsidiaries basis as of the respective dates thereof at December 31, 2006 and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areyear then ended, and for all periods referred to in this Section 3.08 have been, consolidated with those of assuming that the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects events specified in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after preceding sentence had actually occurred at such date or at the date hereof, would require the consent beginning of Purchaser under Section 6.04(b)such period.
(c) Except (i) as During the period from December 31, 2006 to and to including the extent disclosed in Closing Date there has been no Disposition by the Financial StatementsBorrower or any Subsidiaries of any material part of its business or Property, other than Dispositions permitted by Sections 8.2(a), (iib), (c), (d), (e) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iiif).
(d) for Liabilities set forth on Section 3.08(c) of Since December 31, 2006 through the Disclosure ScheduleClosing Date, neither the Company nor any of its Subsidiaries there has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbeen no Material Adverse Effect.
Appears in 1 contract
Sources: Term Loan Agreement (Venoco, Inc.)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following The Borrower’s audited consolidated financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries statements as of December 31, 2014, 2013 and 20122018, and the related audited consolidated Borrower’s unaudited quarterly financial statements as of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 20142018 (or, 2013 and 2012 together with a true and correct copy in each case, as of the report on such audited information by Ernst & Young LLPdate of the most recently delivered financial statements), and all letters from such accountants with respect as heretofore furnished to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30Bank, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP on a consistent basis (except except, in the case of the unaudited quarterly financial statements, for the absence of footnotes and changes resulting from audits and for year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, materialaudit adjustments) and fairly present in all material respects the financial condition of the Borrower and its Subsidiaries, taken as a consolidated enterprise, as at such dates and the results of their operations for the period then ended. As of the dates of such initial consolidated financial statements, neither the Borrower nor any Subsidiary had any material obligation, contingent liability, liability for taxes or long term lease obligation which is not reflected in such consolidated financial statements or in the notes thereto other than its obligations related to its acquisition on or about January 1, 2019 of State Bank Financial Corporation. The Borrower’s regulatory reports, including without limitation FRY-9C, and FRY-9LP reports, as heretofore furnished to the Bank, fairly present the financial condition of the Borrower and its Subsidiaries as at such dates and the results of their operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and changes in financial position for the respective periods covered therebythen ended. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those As of the Company.
(b) Except for the execution and delivery dates of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedulesuch reports, neither the Company Borrower nor any Subsidiary had any material obligation, contingent liability, liability for taxes or long-term lease obligation which is not reflected in such FRY-9C, and FRY-9LP reports other than its obligations related to its acquisition of its Subsidiaries State Bank Financial Corporation. Since December 31, 2018, there has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbeen no Material Adverse Occurrence.
Appears in 1 contract
Financial Statements and Condition. (a) Prior Company has made available to the execution Purchaser Parties, and included in Schedule 2.06(a) of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
Disclosure Schedule are (i) Annual Report Pursuant to the Uniform Reporting System Prescribed for Pari-Mutuel Permit Holders, audited by a certified public accountant as required by Florida law, and audited consolidated financial statements related to the Business (including balance sheets sheet, income statement and statement of cash flows) as of the Company end of the most recently completed last three (3) fiscal years prior to the latest date on which this representation is deemed to be made and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012for the twelve-month period ended on such date, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated financial statements related to the Business (including balance sheet, income statement and statement of operations, members’ equity and cash flows flows) for the portion of the current fiscal year then ended. Except as set forth in ended on the notes thereto and as disclosed in Section 3.08(a) last day of the Disclosure Schedulecalendar month that is no less than 30 days preceding the Effective Date (collectively, “Financial Statements”). The Financial Statements are complete and correct in all such financial statements were material respects and have been prepared in accordance with GAAP (GAAP, except for that the absence of unaudited financial statements do not contain footnotes and changes resulting from audits are subject to year end audit adjustments made in accordance with GAAP. The Financial Statements accurately set out and year-end adjustments describe in all material respects in accordance with GAAP the financial condition of Company and LLLP on a consolidated basis as of the dates and during the periods indicated therein, subject, in the case of the Unaudited Financial Statements the effect of unaudited financial statements, to normal year-end audit adjustments which is not, are neither individually or nor in the aggregate, aggregate material) and fairly present in all material respects the consolidated financial condition and results of operations of the . Company and its consolidated Subsidiaries as LLLP maintain and will continue to maintain a standard system of accounting established and administered in accordance with GAAP. Company and LLLP have maintained the respective dates thereof Business Books and Records for the respective periods covered thereby. The past five (5) years in a manner sufficient to permit the preparation of financial condition and results of operations of each Subsidiary are, and for all periods referred to statements in this Section 3.08 have been, consolidated accordance with those of the CompanyGAAP.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto as set forth on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (iSchedule 2.06(b) the business of the Company Disclosure Schedule and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed except for Indebtedness reflected in the Financial Statements, (ii) for Liabilities neither Company nor LLLP has any Indebtedness outstanding at the date hereof, other than Indebtedness incurred after June 30, 2015 in the ordinary course Ordinary Course of business consistent with past practice and expressly included in Business which shall include Indebtedness relating to the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Approved Gaming Contracts. Neither Company nor LLLP is in default with respect to any outstanding Indebtedness or any instrument relating thereto, nor is there any event which, with the passage of its Subsidiaries has any Liabilitiestime or giving of notice or both, whether or would result in a default, except for such defaults that would not such Liabilities would be required by GAAP reasonably likely to be reflected on cause a consolidated balance sheet of the Company and its SubsidiariesMaterial Adverse Change.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to The Audited Financial Statements and the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following Borrower’s audited consolidated financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries statements as of December 31, 2014, 2013 and 2012, and for the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years year ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
2006 (iii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein; (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, materialii) and fairly present in all material respects the consolidated financial condition of the Borrower and its Restricted Subsidiaries, as of the dates thereof and results of operations for the periods covered thereby; and (iii) except as specifically disclosed therein or on Schedule 6.14(a), neither the Borrower nor its Restricted Subsidiaries have any material Indebtedness or other material liabilities direct or contingent, as of the Closing Date, including liabilities for Taxes, material commitments or Contingent Obligations.
(b) The unaudited pro forma consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of December 31, 2006 (the “Pro Forma Balance Sheet”), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date or the beginning of such period) to (i) the extensions of credit to be made under this Agreement and (ii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet has been prepared based on assumptions that the Loan Parties believe are reasonable as of the date hereof and as of the Closing Date, and present fairly on a pro forma basis the estimated financial position and results of operations of the Company Borrower and its Restricted Subsidiaries on a consolidated Subsidiaries basis as of the respective dates thereof at December 31, 2006 and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areyear then ended, and for all periods referred to in this Section 3.08 have been, consolidated with those of assuming that the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects events specified in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after preceding sentence had actually occurred at such date or at the date hereof, would require the consent beginning of Purchaser under Section 6.04(b)such period.
(c) Except (i) as During the period from December 31, 2006 to and to including the extent disclosed in Closing Date there has been no Disposition by the Financial StatementsBorrower or any Subsidiaries of any material part of its business or Property, other than Dispositions permitted by Sections 8.2(a), (iib), (c), (d), (e) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iiif).
(d) for Liabilities set forth on Section 3.08(c) of Since December 31, 2006 through the Disclosure ScheduleClosing Date, neither the Company nor any of its Subsidiaries there has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbeen no Material Adverse Effect.
Appears in 1 contract
Sources: Term Loan Agreement (Venoco, Inc.)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Group has delivered to Purchaser true and complete copies of the following financial statements:
(i) unaudited consolidated balance sheet of Group and the Subsidiaries as of October 3, 1998 and the audited consolidated balance sheets of Group and the Company and its consolidated Subsidiaries as of December 31January 4, 20141997 and January 3, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 20151998, and the related unaudited consolidated statements of operations, members’ stockholders' equity and cash flows for the portion nine months ended October 3, 1998 and audited consolidated statements of operations, stockholders' equity and cash flows for the fiscal year then endedyears ended January 4, 1997 and January 3, 1998, together with a true and correct copy of each report on such audited information by KPMG Peat Marwick. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedulethereto, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of Group and the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The , except that the unaudited financial condition statements do not contain footnotes and results of operations of each Subsidiary are, and for all periods referred are subject to in this Section 3.08 have been, consolidated with those of the Companynormal year end adjustments.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleDate, since the Unaudited Financial Statement Date January 3, 1998 (i) the business of the Company and the Subsidiaries there has been operated no Material Adverse Effect on Sellers and no event has occurred which is reasonably expected to result in all material respects in the ordinary course, a Material Adverse Effect on Sellers (ii) there the Business has not been any Company Material Adverse Effect and conducted only in the Ordinary Course of Business; (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and Sellers have not sustained or incurred any loss or damage with respect to the extent disclosed in the Financial Statements, Business (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected insured against) on a consolidated balance sheet account of fire, flood, accident or other calamity which has interfered with or affected, or may interfere with or affect, the operation of the Company Business; (iv) there has been no material adverse change in Sellers' relations with any Governmental or Regulatory Authorities or their employees, creditors, advertisers, suppliers, distributors, customers or others having business relationships with Sellers; (v) except for equipment, inventory, and its Subsidiaries.supplies purchased, sold or otherwise disposed of in the Ordinary Course of Business (including the opening or renovation of retail stores, carts or kiosks), Sellers have not purchased, sold, leased, mortgaged, pledged or otherwise acquired or disposed of any properties or assets;
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Archibald Candy Corp)
Financial Statements and Condition. (ai) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(iA) the audited balance sheets of the Company and its consolidated Subsidiaries subsidiaries as of December March 31, 20141996, 2013 1995, 1994, 1993 and 20121992, and the related audited consolidated statements of operations, members’ stockholders' equity and cash flows and related notes for each of the fiscal years ended December 31then ended, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(iiB) the unaudited balance sheets of the Company and its consolidated Subsidiaries subsidiaries as of June September 30, 20151996 and 1995, and the related unaudited consolidated statements of operations, members’ stockholders' equity and cashflows for the portion of the fiscal years then ended and (C) the unaudited pro forma balance sheet of the Company and its consolidated subsidiaries as of September 30, 1996, and the related unaudited pro forma consolidated statements of operations, stockholders' equity and cash flows for the portion of the fiscal year six- month period then ended. Except as set forth in , showing separately all adjustments necessary to eliminate the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all effect on such financial statements were of the Excluded Items. All such financial statements were, and the Final Financial Statements will be, prepared in accordance with GAAP (except for GAAP, and all such financial statements, and the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Final Financial Statements the effect of which is notwill, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areIn addition, and for all periods referred to the Final Balance Sheet also will be prepared in this Section 3.08 have been, consolidated accordance with those of the Companyspecific accounting principles specified on Schedule 1.05.
(bii) Except for the execution and delivery of this Agreement and the consummation of transactions to take place pursuant hereto contemplated hereby on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleDate, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and material adverse change in the Business or Condition of the Company.
(iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any Liabilitiesliabilities or obligations of any kind, whether absolute, accrued, asserted or not such Liabilities would be required by GAAP to be reflected on a unasserted, contingent or otherwise, except liabilities, obligations or contingencies that are accrued or reserved against in the consolidated balance sheet of the Company as of the Financial Statement Date delivered to the Purchaser pursuant to this Section or in the Final Financial Statements, as the case may be, or reflected in the notes thereto, or that were incurred after the Financial Statement Date in the ordinary course of business and its Subsidiariesconsistent with past practices or as otherwise specifically contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Dimon Inc)
Financial Statements and Condition. (a) Prior The Borrower has heretofore furnished to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies each of the following financial statements:
(i) the Banks audited Consolidated balance sheets of the Company Borrower and its consolidated Consolidated Subsidiaries as of December 31, 2014, 2013 1996 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited condensed Consolidated balance sheets of the Company Borrower and its consolidated Consolidated Subsidiaries as of June 30, 2015, 1997 and the related audited (or, in the case of the fiscal period ended June 30, 1997, unaudited consolidated condensed) Consolidated statements of operationsincome, members’ Consolidated statements of stockholders' equity and Consolidated statements of cash flows for the portion each of the fiscal year periods then ended, together with related notes and supplemental information. Except The audited consolidated balance sheet, statement of income, statement of stockholders' equity and statement of cash flows are referred to herein as set forth in the "Audited Financial Statements." The unaudited condensed consolidated balance sheet, statement of income, statement of stockholders' equity and statement of cash flows are referred to herein as the "Unaudited Financial Statements." The Audited Financial Statements and the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for generally accepted accounting principles consistently applied, and present fairly the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated Consolidated financial condition position and results of operations and cash flows of the Company Borrower and its consolidated Consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyindicated, and such balance sheets and related notes show all known direct liabilities and all known contingent liabilities of a material nature of the Borrower and its Consolidated Subsidiaries as of such dates which are required to be included in such financial statements and the notes thereto in accordance with generally accepted accounting principles. The Unaudited Financial Statements reflect all adjustments (consisting only of normal accountingaadjustments) which in the opinion of management of the Borrower are necessary for a fair presentation of the financial condition and position, results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those cash flows of the Company.
(b) Except Borrower for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)period presented.
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Competitive Advance, Revolving Credit and Guaranty Agreement (Dentsply International Inc /De/)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the The audited consolidated balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity income and retained earnings and cash flows and related notes for each of the years Lessee and its subsidiaries set forth in the Lessee's annual report on Form 10-K for the fiscal year ended December 31, 20141995 (copies of which have been delivered to the Participants), 2013 and 2012 together fairly present, in conformity with a true and correct copy generally accepted accounting principles, the consolidated financial position of the report on Lessee and its subsidiaries as of such audited information by Ernst & Young LLP, date and all letters from such accountants with respect to the results of such audits; and
(ii) their operations for the period then ended. The unaudited consolidated balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity income and retained earnings and cash flows for the portion of the fiscal year then ended. Except as Lessee and its subsidiaries set forth in the notes thereto and as disclosed Lessee's quarterly report on Form 10-Q for the fiscal quarter ended September 30, 1996 (copies of which have been delivered to the Participants), fairly present, in Section 3.08(a) conformity with generally accepted accounting principles consistently applied, the consolidated financial position of the Disclosure ScheduleLessee and its subsidiaries as of such date and the results of their operations for the period then ended, all such financial statements were prepared in accordance with GAAP (except for subject to the absence of footnotes and changes resulting from audits and normal year-end adjustments adjustments. Since September 30, 1996, no material adverse change has occurred in the case of the Unaudited Financial Statements the effect of which is not, individually business or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company Lessee and its consolidated Subsidiaries as subsidiaries which has not been disclosed in the Lessee's reports under the Securities Exchange Act of the respective dates thereof and for the respective periods covered thereby1934 or otherwise disclosed in writing. The financial condition and results Lessee's reports under the Securities Exchange Act of operations of each Subsidiary are, and for all periods 1934 referred to in this Section 3.08 have been, consolidated with those did not contain as of their respective dates any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in light of the Companycontext in which they were made, not misleading.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true The Agents and complete copies each Lender ---------------------------------- have received (i)(A) audited consolidated financial statements of the following Parent and its Subsidiaries and (B) consolidating financial statements:
statements of the Parent and its Subsidiaries, for the Fiscal Year ending July 31, 1996 and (ii) unaudited (A) consolidated financial statements of the Parent and its Subsidiaries and (B) consolidating financial statements of the Parent and its Subsidiaries, each as at and for the fiscal quarters ending October 31, 1996. Such financial statements present fairly in accordance with GAAP (i) the audited balance sheets financial position of the Company Parent and its consolidated the Borrower and their respective Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results date of such audits; and
balance sheet and (ii) the unaudited balance sheets results of operations of the Company Parent and its consolidated the Borrower and their respective Subsidiaries for such period. To the best of the Parent's and the Borrower's knowledge, (x) neither the Parent nor the Borrower has material direct or indirect contingent liabilities as of June 30, 2015such date which are not reserved for in such balance sheet or which in accordance with GAAP would have to be included in footnotes thereto, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a(y) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP applied on a basis consistently maintained throughout the period involved (except in the case of interim financial statements, for the absence of footnotes notes and changes resulting from audits and year-normal year end adjustments in adjustments).
(b) To the case best of the Unaudited Financial Statements Parent's and the effect Borrower's knowledge, the unaudited financial statements of which is notthe Borrower as at and for the period ended October 31, individually or 1996, including the related schedules and notes, present fairly in accordance with GAAP (i) the aggregatefinancial position of the Parent and the Borrower as of the date of such balance sheet, materialand (ii) and fairly present in all material respects the consolidated financial condition and results of operations of the Company Borrower for the period then ended, and, except as set forth on Schedule 5.6(b) hereto, there has been no Material Adverse Change to the Parent and its consolidated Subsidiaries, to the US Borrower and its Subsidiaries, or to the CAN Borrower and its Subsidiaries, since July 31, 1996.
(c) The Agents and each Lender have received the Borrower's most recent budget dated July 31, 1997 of the future financial performance of the Parent and its Subsidiaries (including, without limitation, the US Borrower and the CAN Borrower). The projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Borrower to be reasonable at the time made and as of the respective dates thereof date hereof, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and for that actual results during the respective period or periods covered therebyby such projections may differ from the projected results. The No fact is known on the date hereof to any Credit Party which would have a Material Adverse Effect to the Parent and its Subsidiaries that has not been set forth in the financial condition and results of operations of each Subsidiary are, and for all periods statements referred to in this Section 3.08 have been, consolidated with those of 5.6 or disclosed herein or in the Company.
(b) Except for schedules attached hereto or otherwise disclosed to the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or Agents in writing prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)Date.
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related The Borrower's audited consolidated balance sheet and statements of operationsearnings, members’ changes in common stockholders' equity and cash flows as of and related notes for each of the years fiscal year ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect 2003 heretofore furnished to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements Lenders were prepared in accordance with GAAP consistently applied throughout the periods involved (except as may be indicated in the notes thereto regarding the adoption of new accounting policies) and present fairly in all material respects the consolidated financial position of the Borrower and its Subsidiaries at the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the absence respective periods then ended. The Borrower's unaudited balance sheet and statements of footnotes earnings and changes resulting from audits cash flows as of and for the fiscal quarter ended March 31, 2004 heretofore furnished to the Lenders were prepared in accordance with GAAP consistently applied throughout the periods involved and in a manner consistent with that employed in the Borrower's audited consolidated financial statements for the fiscal year ended December 31, 2003. The Borrower's unaudited interim financial statements as at March 31, 2004 do not contain any footnote disclosures and are subject to normal recurring year-end adjustments in the case of the Unaudited Financial Statements the effect of which is notadjustments, individually or in the aggregate, material) and but otherwise present fairly present in all material respects the consolidated financial condition and consolidated results of operations of the Company Borrower and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyindicated therein except as otherwise set forth therein. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those As of the Company.
(b) Except for the execution and delivery dates of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedulesuch financial statements, neither the Company Borrower nor any Subsidiary had any material obligation, contingent liability, liability for taxes or long-term lease obligation which is not reflected in such financial statements or in the notes thereto. Since December 31, 2003, there has been no material adverse change in the business, operations, property, assets or condition, financial or otherwise, of the Borrower and its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on taken as a consolidated balance sheet of the Company and its Subsidiarieswhole.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Shareholders have caused the Company has delivered to Purchaser deliver to Atmos true and complete copies of the following financial statements:
following: (i) the audited balance sheets of the Company and its consolidated Subsidiaries subsidiaries as of December 31September 30, 20141998, 2013 1999 and 20122000, and the related audited consolidated statements of operations, members’ shareholders' equity and cash flows and related notes for each of the fiscal years ended December 31then ended, 2014, 2013 including the notes thereto and 2012 together with a true and correct copy of the report on such audited information by Ernst Deloitte & Young Touche LLP, and all letters from such accountants with respect to the results of such audits; and
and (ii) the unaudited balance sheets sheet of the Company and its consolidated Subsidiaries subsidiaries as of June 30, 20152001 (the "June 30, 2001 Balance Sheet"), and the related unaudited consolidated statements of operations, members’ shareholders' equity and cash flows for the portion of the fiscal year nine-month period then ended, including the notes thereto, copies of which are also included in the Disclosure Schedule. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements Financial Statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and condition, results of operations operations, changes in shareholders' equity and cash flows of the Company and its consolidated Subsidiaries subsidiaries as of the respective dates thereof and for the respective periods covered thereby, subject, in the case of the interim Financial Statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be materially adverse) and the absence of notes (that, if presented, would not differ materially from those included in the latest audited Financial Statements). The Except for those Subsidiaries listed in the Disclosure Schedule, the financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 4.09 have been, consolidated with those of the Company.
(b) Except as set forth in the Disclosure Schedule, the Company and the Subsidiaries have no material Liabilities other than (i) the liabilities reflected in the June 30, 2001 Balance Sheet, (ii) liabilities incurred since the date thereof in the ordinary course of business consistent with past practices (none of which is materially adverse), and (iii) liabilities specifically delineated as to nature and amount in the Disclosure Schedule.
(c) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date September 30, 2000, (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary coursecourse consistent with past practice, (ii) there has not been any material adverse change in the Business or Condition of the Company, other than those occurring as a result of general economic or financial conditions affecting the United States as a whole or the region in which the Company Material Adverse Effect and the Subsidiaries conduct their business or other developments which are not unique to the Company and the Subsidiaries but also affect other Persons who participate or are engaged in the lines of business in which the Company and the Subsidiaries participate or are engaged and (iii) no the Company and the Subsidiaries have used their commercially reasonable efforts to preserve their business and goodwill, including the goodwill of their customers, employees, subcontractors, suppliers, insurers, regulators and other Persons having business relations with them, and maintained their assets and property in at least as good an order and condition as existed on such date, reasonable wear and tear excepted, which is sufficient to continue to conduct their business as heretofore conducted.
(d) Except as disclosed in the Disclosure Schedule, since September 30, 2000, there has not been, occurred or arisen, whether or not in the ordinary course of business:
(i) any change in or event affecting the Company or any of the Subsidiaries that has had or is reasonably expected to have a material adverse effect on the Business or Condition of the Company other than those occurring as a result of general economic or financial conditions affecting the United States as a whole or the region in which the Company and the Subsidiaries conduct their business or other developments which are not unique to the Company and the Subsidiaries but also affect other Persons who participate or are engaged in the lines of business in which the Company and the Subsidiaries participate or are engaged;
(ii) any casualty, loss, damage or destruction (whether or not covered by insurance) of any of the Assets and Properties of the Company or any of the Subsidiaries that has involved or may involve a material loss to any of the Company and the Subsidiaries in excess of all applicable insurance coverage (excepting deductible amounts);
(iii) any amendment of the Company's Articles of Incorporation or Bylaws or any charter or bylaws of the Subsidiaries;
(iv) any transaction between the Company or any Subsidiary and any of the Shareholders;
(v) any declaration or payment of any dividend or distribution with respect to capital stock of the Company or any Subsidiary (whether in cash or in kind), other than dividends to the Company, or redemption, purchase or other acquisition of any of its capital stock;
(vi) any capital expenditure (or series of related capital expenditures) by the Company or any Subsidiary outside the ordinary course of business or inconsistent with past practice;
(vii) any increase in the bonus, salaries or other compensation or benefits of any of the directors, officers, employees, agents or consultants of the Company or any Subsidiary outside the ordinary course of business or inconsistent with past practice or any other change in the employment terms (including severance provisions) for any of its officers or employees outside the ordinary course of business or inconsistent with past practice;
(viii) any delay or postponement by the Company or any Subsidiary of the payment of any accounts payable or other liabilities in a manner inconsistent with the ordinary course of business or past practice;
(ix) any assumption, creation, guarantee or incurrence by the Company or any Subsidiary of any Indebtedness, whether absolute or contingent (other than for working capital in the ordinary course of business consistent with past practice);
(x) any settlement of any lawsuit by the Company or any Subsidiary, other than settlements that have an immaterial effect upon them;
(xi) any adverse change, in any material respect, in the Company's rate base, its rate agreement with the MPSC (including its allowed rate of return, purchased gas adjustments or weather normalization adjustments), or in rate adjustments;
(xii) any adverse change in the customer satisfaction surveys or comparison of rates versus other Southeastern United States gas companies that might affect the Company's performance adjustment in any material respect; or
(xiii) any other action has been taken thatby the Company or any Subsidiary which, if taken after the date hereof, would require the consent of Purchaser under violate Section 6.04(b)6.07.
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Atmos Energy Corp)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the The audited consolidated balance sheets of the Company and its consolidated Subsidiaries Borrower as of December 31the Fiscal Year ended September 30, 2014, 2013 and 20122010, and the related audited consolidated statements of operationsoperation, members’ stockholders equity and cash flows and related notes (including supporting footnote disclosures) for each the Fiscal Years then ended, with the opinion of the years ended December 31EFP ▇▇▇▇▇▇▇▇▇, 2014LLC, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect heretofore furnished to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30Lender, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP (except for consistently applied throughout the absence of footnotes periods indicated, are all true and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present correct in all material respects and present fairly the consolidated financial condition of IEC, IECW&C and GTC at the date of said financial statements and the results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyFiscal Year then ended. The financial condition and results of operations of each Subsidiary are, and for all periods referred to statements described in this Section 3.08 11.6 are collectively called the “Financial Statements”. The Credit Parties as of such dates did not have beenany significant liabilities, consolidated with those contingent or otherwise, including liabilities for taxes or any unusual forward or long-term commitments which were not disclosed by or reserved against in the Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the CompanyCredit Parties.
(b) Except for On and as of the execution and delivery date of this Agreement Agreement, and after giving effect to all Debt (including the Loans) and Liens created by the Credit Parties in connection therewith and the transactions to take place pursuant hereto on or prior to GTC Transaction, the Closing Date Celmet Transaction and as disclosed in Section 3.08 of the Disclosure ScheduleSCB Transaction, since the Unaudited Financial Statement Date (i) the business sum of the Company assets, at a fair valuation, of the Borrower (standing alone) and the Subsidiaries has been operated in all material respects in the ordinary courseCredit Parties (taken as a whole) will exceed its and their debts, (ii) there the Borrower (standing alone) and the Credit Parties (taken as a whole) has and have not been any Company Material Adverse Effect incurred and (iii) no action has been taken thatdoes or do not intend to incur, if taken after the date hereofand does or do not believe that it or they will incur, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) debts beyond its or their ability to pay such debts as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiessuch debts mature, and (iii) for Liabilities set forth the Borrower (standing alone) and the Credit Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 11.6(b), “debt” means any liability on Section 3.08(ca claim, and “claim” means (i) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilitiesright to payment, whether or not such Liabilities would a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be required by GAAP computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbecome an actual or matured liability.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser Attached hereto as EXHIBIT VII.7(A) are true and complete copies of the following audited financial statements:
statements (i) the audited balance sheets sheet, profit and loss statement and notes thereto together with a report thereon of the Company and its statutory auditor) of each of the Companies as well as, where applicable on a consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes basis for each of the fiscal years ended on December 31, 20142000, 2013 December 31, 2001 and 2012 together with a true and correct copy of December 31, 2002 (hereinafter collectively referred to as the report on such audited information by Ernst & Young LLP"AUDITED FINANCIAL STATEMENTS"), and all letters from such accountants with respect to except that the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows Audited Financial Statements for the portion of the fiscal year then ended. Except as set forth ended on December 31, 2002 will be attached hereto after the date hereof but prior to the Closing Date in the notes thereto and as disclosed in Section 3.08(a) substitution of the Disclosure Schedule, all such those financial statements for the fiscal year ended on December 31, 2002 attached hereto which have not been audited. The Audited Financial Statements have been certified without qualification by the Companies' statutory auditor and are completely accurate and sincere in accordance with the Companies books and records. The Audited Financial Statements were prepared in accordance with GAAP the Accounting Principles consistently applied and French GAAP, and give a true and fair view (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case sont reguliers et sinceres et donnent une image fidele) of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition position and results of operations of each Subsidiary are, of the Companies as of each such date and for all periods referred to in this Section 3.08 have been, consolidated with those of the Companyperiod then ended.
(b) There are no off-balance sheet items (engagements hors bilan) or any other indebtedness or liability, absolute or contingent, known or unknown (including any liabilities relating to factoring or credit-bail arrangements), which will not be fully accrued or provisioned for in the Audited Financial Statements. All legal or contractual employee pensions are adequately provisioned for in the Audited Financial Statements. Neither of the Companies is directly or indirectly liable upon or with respect to (by discount, repurchase agreements or otherwise), or obligated in any other way to provide funds in respect of, or to guarantee or assume, any debt, obligation or dividend of any person, except endorsements in the ordinary course of business in connection with the deposit of items for collection.
(c) Neither of the Companies has granted any guaranty, charge or other real or personal security for its own liabilities and liabilities of any Person, including the Sellers.
(d) Neither of the Companies has at any time within the past five (5) years suspended the payment of its debts as they fall due ("cessation de paiements") or been declared in judicial liquidation ("liquidation judiciaire"), or made an amicable settlement with its creditors ("reglement amiable"), or been declared in judicial reorganization ("redressement judiciaire"), or been declared under the threat of any such proceedings.
(e) There is no indebtedness of any kind, including any account advance or cash pooling agreement, existing or to be incurred on or prior to the Closing Date payable by the Sellers to either of the Companies or their Affiliates or by either of the Companies to the Sellers or their Affiliates except for the Shareholders Debt to be repaid by the Companies at Closing as identified in EXHIBIT 0.1.4.
(f) Except as set forth in EXHIBIT VII.7(F), there are no business transactions or other arrangements between the Sellers (and/or their Affiliates) and either of the Companies.
(g) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleDate, since the Unaudited Financial Statement Date December 31, 2002, (i) the business neither of the Company Companies has taken any action of a type referred to in ARTICLE IX.1 below that would have required the consent of the Buyer if such action were to have been taken during the period between the date hereof and the Subsidiaries has been operated in all material respects in the ordinary course, Closing; and (ii) there each of the Companies has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 conducted its business in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiespractice, and (iii) for Liabilities set forth on Section 3.08(c) no change, situation, development or other event having or which will have a Material Adverse Effect has occurred. Neither the Sellers nor each of the Disclosure ScheduleCompanies knows or has reason to know of any change, neither the Company nor any of its Subsidiaries has any Liabilitiessituation, whether prospective development or not such Liabilities would be required by GAAP other event which threatens or may threaten to be reflected on have a consolidated balance sheet of the Company and its SubsidiariesMaterial Adverse Effect.
Appears in 1 contract
Financial Statements and Condition. (a) Prior Seller and Colfax have caused to the execution of this Agreement, the Company has delivered be prepared and furnished to Purchaser true and complete copies of the following financial statements:
(i) Buyer the audited combined balance sheets sheets, statement of the Company operations and its consolidated Subsidiaries comprehensive income, statement of changes in equity and statement of cash flows for Seller as of December 31, 2014, 2013 2003 and 20122002, and for the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of three years in the years period ended December 31, 20142003 (collectively, 2013 and 2012 together with a true and correct copy the “Seller Financial Statements”), copies of which are attached hereto as Schedule 3.06(a). The audited Seller Financial Statements, including the footnotes thereto, present fairly the financial position of the Seller as of such dates and the results of operations and cash flow for the respective periods indicated and are consistent with the books and records of the Acquired Companies and the Subsidiaries. CPTG is separately managed as part of Colfax Corporation and as such, certain assumptions had to be made in presenting the financial statements of CPTG. Therefore, the audited financial statements included herein may not reflect the combined financial position, operating results, and the cash flows of CPTG in the future or what they would have been had CPTG been a separate, independent entity during the periods presented. The Seller Financial Statements have been prepared in accordance with Generally Accepted Accounting Principles, in accordance with past practices on a consistent basis throughout the periods covered thereby. The audited Seller Financial Statements are accompanied by the related report on such audited information by of Ernst & Young LLP, independent certified public accountants.
(b) Seller and all letters from such accountants with respect Colfax caused to be prepared and furnished to Buyer (i) the results unaudited, pro forma, combined balance sheets, income statements, statement of such audits; and
changes in equity and statement of cash flows for CPTG as of December 31, 2003 and 2002 and for the two years in the period ended December 31, 2003, (ii) the unaudited unaudited, pro forma, combined balance sheets sheets, income statements, statement of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ changes in equity and statement of cash flows for CPTG for the portion nine month period ended September 30, 2004 (collectively, the “Financial Statements”), copies of the fiscal year then endedwhich are attached hereto as Schedule 3.06(b). Except as set forth in the notes thereto and as disclosed in Section 3.08(aThe Financial Statements (i) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP Generally Accepted Accounting Principles (except for the absence of footnotes thereto and changes resulting from audits other presentation items and subject to normal and customary year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary courseaudit adjustments), (ii) there has not have been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after prepared on the date hereof, would require the consent of Purchaser under Section 6.04(bbasis described on Schedule 3.06(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) present fairly the financial position of CPTG as of such dates and the results of operations on a pro forma basis for Liabilities set forth on Section 3.08(c) the respective periods indicated. CPTG is separately managed as part of the Disclosure ScheduleColfax Corporation and as such, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP certain assumptions had to be reflected on made in presenting the financial statements of CPTG. Therefore, the Financial Statements included herein may not reflect the combined financial position, operating results, and the cash flows of CPTG in the future or what they would have been had CPTG been a consolidated balance sheet of separate, independent entity during the Company and its Subsidiariesperiods presented.
Appears in 1 contract
Financial Statements and Condition. (a) Prior MedicalCV’s unaudited financial statements, dated as of April 30, 2003, as heretofore furnished to LightWave, fairly present the financial condition of MedicalCV. MedicalCV has filed all forms, reports and documents required to be filed by it with the SEC since November 21, 2001 and has heretofore made available to the execution of this AgreementLender, in the Company has delivered to Purchaser true and complete copies of form filed with the following financial statements:
SEC (excluding any exhibits thereto), (i) its Annual Report on Form 10-KSB for the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31fiscal year ended April 30, 2014, 2013 and 20122002, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) all other forms, reports, registration statements and other documents filed by MedicalCV with the unaudited balance sheets of SEC since November 21, 2001 (the Company forms, reports, registration statements and its consolidated Subsidiaries other documents referred to in clauses (i) and (ii) above being referred to herein, collectively, as of June the “MedicalCV SEC Reports”). Since April 30, 20152003, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except except as set forth in the notes thereto and as disclosed MedicalCV SEC Reports, there has been no material adverse change in Section 3.08(athe financial condition or assets of MedicalCV. To the best of Borrower’s knowledge, MedicalCV SEC Reports (i) of the Disclosure Schedule, all such financial statements were prepared substantially in accordance with GAAP the requirements of the Securities Act of 1933, as amended (except for the absence “Securities Act”) and the Securities Exchange Act of footnotes 1934, as amended, as the case may be, and changes resulting from audits the rules and year-end adjustments regulations thereunder and (ii) did not at the time they were filed, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the case light of the Unaudited Financial Statements the effect of circumstances under which is notthey were or are made, individually not misleading. LightWave acknowledges or in the aggregate, materialrepresents that:
(a) It has received and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company.reviewed MedicalCV SEC Reports;
(b) Except for It is able to bear the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 economic risk of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated transaction described in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).this Agreement;
(c) Except It understands the risk of investment in MedicalCV;
(id) as It has been given access to full and complete information regarding MedicalCV, including the opportunity to the extent disclosed in the Financial Statementsmeet with officers, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course ask questions of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiesreceive answers from such officers, and review such documents as it may have requested, and has utilized such access to his satisfaction for the purpose of obtaining information in addition to, or verifying information included in, MedicalCV SEC Reports and other information disclosed by MedicalCV orally or in writing.
(iiie) for Liabilities set forth on Section 3.08(c) Neither the Warrants nor common stock of MedicalCV issuable upon exercise of the Disclosure Schedulethereof (“Shares”) have been registered under the Securities Act or state securities laws; and
(f) The Warrants and Shares are being acquired for its own account and for investment and without the intention of reselling or redistributing the same, neither and that if LightWave should determine to dispose or transfer the Company nor any Warrants or Shares, it will not do so without (1) obtaining an opinion of its Subsidiaries has any Liabilitiescounsel satisfactory to MedicalCV that such proposed disposition or transfer may lawfully be made without registration under the Act, whether or not (2) such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesregistrations are in effect.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the The audited consolidated balance sheets of the Company and its consolidated Subsidiaries Borrower as of December 31the Fiscal Year ended September 30, 2014, 2013 and 20122009, and the related audited consolidated statements of operationsoperation, members’ stockholders equity and cash flows and related notes (including supporting footnote disclosures) for each the Fiscal Years then ended, with the opinion of EFP ▇▇▇▇▇▇▇▇▇, all heretofore furnished to the years ended December 31Lender, 2014have been prepared in accordance with GAAP consistently applied throughout the periods indicated, 2013 and 2012 together with a are all true and correct copy in all material respects and present fairly the financial condition of IEC and IECW&C at the report on such audited information by Ernst & Young LLP, date of said financial statements and all letters from such accountants with respect to the results of such audits; and
(ii) operations for the unaudited Fiscal Year then ended. The internally prepared balance sheets sheet of GTC for the Company Fiscal Year-to-date and its consolidated Subsidiaries as of June 30October, 20152009 Fiscal Month end, and the related unaudited consolidated statements of operationsoperation, members’ stockholders equity and cash flows for the portion of the fiscal year periods then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were heretofore furnished to the Lender, have been prepared in accordance with GAAP (except for the absence of footnotes absent footnote disclosures and changes resulting from audits and customary year-end adjustments in adjustments) consistently applied throughout the case of the Unaudited Financial Statements the effect of which is notperiods indicated, individually or in the aggregate, material) are all true and fairly present correct in all material respects and present fairly the consolidated financial condition of GTC at the date of said financial statements and the results of GTC operations of for the Company and its consolidated Subsidiaries fiscal period then ending. The internally prepared balance sheet for the Credit Parties as of the respective dates thereof June 25, 2010 Fiscal Month end is true and for correct in all material respects and fairly represents the respective periods covered therebyinformation therein applicable to the Borrowing Base Certificate of the Credit Parties delivered to the Lender on July 9, 2010. The financial condition and results of operations of each Subsidiary are, and for all periods referred to statements described in this Section 3.08 10.6 are collectively called the “Financial Statements”. The Credit Parties as of such dates did not have beenany significant liabilities, consolidated with those contingent or otherwise, including liabilities for taxes or any unusual forward or long-term commitments which were not disclosed by or reserved against in the Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the CompanyCredit Parties.
(b) Except for On and as of the execution and delivery date of this Agreement Agreement, and after giving effect to all Debt (including the Loans) and Liens created by the Credit Parties in connection therewith and the transactions to take place pursuant hereto on or prior to the Closing Date GTC Transaction and as disclosed in Section 3.08 of the Disclosure ScheduleCelmet Transaction, since the Unaudited Financial Statement Date (i) the business sum of the Company assets, at a fair valuation, of the Borrower (standing alone) and the Subsidiaries has been operated in all material respects in the ordinary courseCredit Parties (taken as a whole) will exceed its and their debts, (ii) there the Borrower (standing alone) and the Credit Parties (taken as a whole) has and have not been any Company Material Adverse Effect incurred and (iii) no action has been taken thatdoes or do not intend to incur, if taken after the date hereofand does or do not believe that it or they will incur, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) debts beyond its or their ability to pay such debts as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiessuch debts mature, and (iii) for Liabilities set forth the Borrower (standing alone) and the Credit Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 10.6(b), “debt” means any liability on Section 3.08(ca claim, and “claim” means (i) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilitiesright to payment, whether or not such Liabilities would a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be required by GAAP computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbecome an actual or matured liability.
Appears in 1 contract
Financial Statements and Condition. (a) Prior The audited consolidated financial statements and unaudited consolidated financial statements of Seller (including any related notes or schedules thereto) included (or incorporated by reference) in any registration statement, report, schedule, definitive proxy statement or other document which Seller was required to file with the execution SEC since January 1, 2000 (the “Seller Financial Statements”) were complete and correct in all material respects as of this Agreementtheir respective dates, complied as to form in all material respects with applicable accounting requirements and with the Company has delivered to Purchaser true published rules and complete copies regulations of the following financial statements:
(i) the audited balance sheets SEC with respect thereto as of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012respective dates, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP (except for as may be indicated in the absence of footnotes and changes resulting from audits and year-end adjustments notes thereto or, in the case of unaudited statements included in Quarterly Reports on Form 10-Qs, as permitted by Form 10-Q of the Unaudited SEC). The Seller Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and operating results of Seller and its subsidiaries at the dates and during the periods indicated therein (subject, in the case of unaudited statements, to normal, recurring year-end adjustments). The unaudited balance sheets and statements of income and cash flows of the Division for the immediately past two calendar years, attached as Section 2.5(a) of the Seller Disclosure Schedule (the “Division Financial Statements”), were prepared in accordance with GAAP, other than the absence of footnotes, applied on a consistent basis throughout the periods covered thereby, and present fairly, in all material respects, the financial condition of the Division as of their respective dates and the results of operations of the Company and its consolidated Subsidiaries as of the for those respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Companyperiods.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleDate, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary courseSeptember 30, (ii) 2001, there has not been any Company Material Adverse Effect and (iiion the Condition of the Business, other than those disclosed in Section 2.5(b) no action has been taken that, if taken after of the date hereof, would require the consent of Purchaser under Section 6.04(b)Seller Disclosure Schedule.
(c) Except (iSince September 30, 2001, except as disclosed in Section 2.5(c) as and of the Seller Disclosure Schedule or any other Section of the Seller Disclosure Schedule, Seller has not incurred any Liabilities which in the aggregate are material to the extent disclosed in Condition of the Financial StatementsBusiness, (ii) for other than Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbusiness.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered to Purchaser true and complete copies of the following financial statementsBuyer:
(ia) the audited balance sheets of Seller as at December 31 in each of the Company years 1994 and its consolidated Subsidiaries as of December 31, 2014, 2013 and 20121995, and the related audited consolidated statements of operationsincome and retained earnings, members’ equity and cash flows and related notes for each of the years ended then ended, including, without limitation, the notes thereto, together with the report thereon of W&M (the "1994 and 1995 Financial Statements");
(b) an audited balance sheet of Seller as at December 31, 20141996 (including the notes thereto, 2013 the "Balance Sheet"), and 2012 the related audited statements of income and retained earnings, and cash flows. for the year then ended, including, without limitation, the notes thereto, together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to thereon of W&M (the results of such audits"1996 Financial Statements"); and
(iic) the an unaudited balance sheets sheet of Seller at May 31, 1997 (the Company and its consolidated Subsidiaries as of June 30, 2015, "Interim Balance Sheet") and the related unaudited consolidated statements of income and retained earnings for the five months then ended (the "Interim Financial Statements"). Each of the financial statements described in this Section, and the notes thereto, fairly present the financial condition, the results of operations, members’ equity and the cash flows of Seller as at the respective dates of and for the portion of the fiscal year then ended. Except as set forth periods referred to in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedulesuch financial statements, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments GAAP, subject, in the case of the Unaudited Interim Financial Statements Statements, to normal recurring year-end adjustments (the effect of which is will not, individually or in the aggregate, be material) and fairly present the absence of notes (that, if presented, would not differ materially from those included in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyBalance Sheet). The financial condition and results of operations of each Subsidiary are, and for all periods statements referred to in this Section 3.08 have been5.7 reflect the consistent application of GAAP throughout the periods involved, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and except as disclosed in Section 3.08 the notes to such financial statements. No financial statements of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be entity other than Seller are required by GAAP to be reflected on a consolidated balance sheet included in the financial statements of the Company and its SubsidiariesSeller. Seller has Acquired Net Assets of not less than Thirteen Million Seven Hundred Twenty-Six Thousand Dollars ($13,726,000.00), taking into account, for such purposes, reserves against Accounts Receivable of Six Hundred Thousand Dollars ($600,000.00).
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered made available to Purchaser the Investor true and complete copies of the following financial statements:
Financial Statements. The information contained in the Financial Statements shall be substantially similar to the information contained in the audited consolidated balance sheets, income statements and statements of cash flow of Tianwei Yingli for the years ended on December 31, 2003, 2004 and 2005 (the "ACTUAL ANNUAL FINANCIAL STATEMENTS") and the unaudited consolidated balance sheets, income statements and statements of cash flow of Tianwei Yingli for the six months ended June 30, 2006 (the "ACTUAL INTERIM FINANCIAL STATEMENTS"); provided, that (i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes net income for each of the years ended on December 31, 20142003, 2013 2004 and 2012 together with a true and correct copy 2005 as indicated in the Financial Statements shall not be greater or less than net income for each of the report on such audited information corresponding years indicated in the Actual Annual Financial Statements by Ernst & Young LLP, more than ten percent (10%) and all letters from such accountants with respect to the results of such audits; and
(ii) net income for the unaudited balance sheets of the Company and its consolidated Subsidiaries as of six months ended on June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows 2006 shall not be greater or less than net income for the portion of the fiscal year then ended. Except as set forth corresponding period indicated in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Actual Interim Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Companyby more than fifteen percent (15%).
(b) Except for the execution and delivery of this Agreement the Transaction Documents and the transactions to take place pursuant hereto thereto on or prior to the Closing Date and or as disclosed in Section 3.08 of the Disclosure Schedule, since January 1, 2006 until the Unaudited Financial Statement Date (i) Closing Date, the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) course consistent with past practice and there has not been any change in the Business or Condition of the Company that has or would reasonably be expected to have a Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)Effect.
(c) Except (i) To the Knowledge of the Company, except as and to the extent disclosed reflected in the Financial StatementsStatements described in paragraph (a) of this Section or as set forth in the Disclosure Schedule, (ii) and except for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedulepractice, neither the Company nor any of its Subsidiaries Subsidiary has any Liabilitiesmaterial Liabilities of any nature (whether accrued, whether absolute, contingent or not such Liabilities would be otherwise) required by GAAP to be reflected set forth on a consolidated balance sheet of the Company and its Subsidiariesor in the notes thereto.
Appears in 1 contract
Sources: Series a Preferred Share Purchase Agreement (Yingli Green Energy Holding Co LTD)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies The audited consolidated financial statements of the following financial statements:
(i) the audited balance sheets of the Company and Target as at its consolidated Subsidiaries as of December fiscal years ended March 31, 20142008, 2013 March 31, 2009, and 2012March 31, 2010, and the related audited consolidated unaudited financial statements of operationsthe Target for the five months ending August 31, members’ equity and cash flows and related notes for 2010, copies of each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect which have been delivered to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30Bank, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP Hong Kong financial reporting standards on a consistent basis (except for for, as to the interim statements, the absence of footnotes and changes resulting from audits and normal year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, materialaudit adjustments) and fairly present in all material respects the consolidated financial condition of the Target as at such dates and the results of its operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and changes in financial position for the respective periods covered therebythen ended. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those As of the Companydates of such financial statements, the Target did not have any material obligation, contingent liability, liability for taxes, or long-term lease obligation that is not reflected in such financial statements or in the notes thereto. Since March 31, 2010, there has been no Material Adverse Occurrence with respect to the Target. On and after the Effective Date, there has been no Material Adverse Occurrence with respect to the Borrower.
(b) Except for The consolidated financial projections (including an operating budget and a cash flow budget) of the execution and delivery Borrower delivered pursuant to Section 3.1(a)(xi) were prepared by the Borrower in good faith utilizing assumptions believed by the Borrower to be reasonable at the time. The accompanying unaudited consolidated pro forma balance sheet of this Agreement the Borrower as at the Effective Date, adjusted to give effect to the consummation of the Acquisition (Enson), the transactions contemplated by the Transaction Documents, and the financings contemplated hereby as if such transactions to take place pursuant hereto had occurred on or prior to such date (excluding the Closing Date and as disclosed in Section 3.08 impact of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business revaluation of the Company and the Subsidiaries has been operated balance sheet in accordance with FASB 141 “Business Combinations”), is consistent in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)with such projections.
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Financial Statements and Condition. (a) Prior The Sellers have provided the Financial Statements to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies Buyer. Copies of the following financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as Financial Statements are set forth in the notes thereto and as disclosed in on Section 3.08(a4.04(a) of the Disclosure Schedule.
(b) The Financial Statements have been prepared from, all such financial statements were prepared and are consistent with, the Company’s books and records and in accordance with GAAP (except for applied on a consistent basis throughout the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited periods covered thereby. The Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of such dates and the respective dates thereof and results of the Company’s operations for the respective periods covered therebyspecified, subject to, with respect to the Interim Financial Statements, normal year-end adjustments and the absence of footnotes. The financial condition and results Since December 31, 2020, there has been no material change in any of operations of each Subsidiary arethe accounting (or tax accounting) policies, and for all periods referred to in this Section 3.08 have been, consolidated with those practices or procedures of the Company.
(bc) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on There are no material liabilities or prior to the Closing Date and as disclosed in Section 3.08 other obligations of the Disclosure ScheduleCompany (whether absolute, since the Unaudited Financial Statement Date accrued, contingent or otherwise and whether or not due) required to be disclosed or reflected on a balance sheet prepared in accordance with GAAP, except (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed those that are adequately reflected or otherwise adequately reserved against in the Financial Statements, or (ii) for Liabilities incurred after June 30, 2015 those liabilities that are not (singly or in the ordinary course aggregate) material to the Company and have been incurred in the Ordinary Course since the Current Balance Sheet Date (none of business consistent with past practice which results from, arises out of, relates to, is in the nature of, or was caused by any breach of Contract, breach of warranty, tort, infringement, litigation or violation of Law).
(d) The allowances for loan and expressly lease losses as reflected in each of (a) the latest balance sheets included in the calculation Financial Statements and (b) in the balance sheets as of Final Assumed LiabilitiesDecember 31, 2020 included in the Financial Statements, were, in the opinion of the Sellers, as of each of the dates thereof, in compliance in all material respects with the Company’s existing methodology for determining the adequacy of its allowance for loan and lease losses as well as the standards established by applicable Governmental Authority, the Financial Accounting Standards Board, and GAAP.
(iiie) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its SubsidiariesThe Company’s Members’ Capital is at least $8,564,000.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete Schedule 3.7(a) sets forth copies of the following financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company as at December 31, 2008 and its consolidated Subsidiaries as of June 30, 2015, 2007 and the related unaudited consolidated statements of operationsincome, membersstockholders’ equity and cash flows of the Company for the portion years then ended, (ii) the audited balance sheet of the fiscal Company as at December 31, 2009 and the related audited statements of operations, stockholders’ equity and cash flows of the Company for the year then ended. Except as set forth in ended (the notes thereto “Audited Financial Statements”), and as disclosed in Section 3.08(a(iii) the internally prepared unaudited balance sheet of the Disclosure ScheduleCompany as of and at January 31, all such financial 2010, and the related consolidated statements were prepared in accordance with GAAP (except of income and cash flows of the Company for the absence one-month period then ended (the “Interim Financial Statements”) (such statements, including the related notes and schedules thereto, are referred to herein as the “Financial Statements”). Each of footnotes the Financial Statements is complete and changes resulting from audits and year-end adjustments correct in all material respects, subject, in the case of the Unaudited Interim Financial Statements Statements, to normal year end adjustments and the effect absence of which is notnotes thereto, individually or has been prepared in accordance with generally accepted accounting principles in the aggregateUnited States (“GAAP”) consistently applied by the Company without modification of such accounting principles used in the preparation thereof throughout the periods presented, materialpresents fairly in all material respects, the consolidated financial position and results of operations, changes in stockholders’ equity and cash flows of the Company as at the dates and for the periods indicated therein. For the purposes hereof, the unaudited balance sheet of the Company at January 31, 2010 is referred to as the “Balance Sheet” and January 31, 2010 is referred to as the “Balance Sheet Date.”
(b) and fairly present The Company maintains internal controls over financial reporting sufficient in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries to provide reasonable assurances (a) that material transactions are recorded as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date necessary (i) the business to permit preparation of the Company and the Subsidiaries has been operated financial statements in conformity in all material respects with GAAP (subject to adjustments consistent with the past practice) and (ii) to maintain accountability of material assets and (b) that transactions are executed, and access to assets is permitted, in accordance with management’s general or specific authorizations. During the ordinary courseperiods covered by the Audited Financial Statements, (i) there has been no change in such internal controls that has materially affected such internal controls, (ii) there is no material deficiency or weakness that has not been any Company Material Adverse Effect and (iii) no action has been taken thatmaterially adversely affected the Company’s ability to record, if taken after the date hereofprocess, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiessummarize or report financial information, and (iii) for Liabilities there has been no fraud to the Company’s Knowledge that involves management or other employees of the Company who have a significant role in the operation of the Company’s internal controls. Each exception to this Section 3.7(b) set forth on Section 3.08(c) of the Company Disclosure Schedule, neither if any, has been previously reported to the Company’s Board of Directors. The Company has not received any written or oral complaint, allegation or claim that it has engaged in improper accounting or other financial business practices. Nothing contained herein contains any representation or warranty that the Company nor any has satisfied the requirements of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet Section 404 of the Company and its Subsidiaries▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Old HomePlace has delivered to Purchaser Waccamaw true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company Old HomePlace and its consolidated Subsidiaries subsidiaries as of December 31February 28, 20141998 and March 1, 2013 and 2012, 1997 and the related audited consolidated statements of operations, members’ stockholders' equity and cash flows and related notes for each of the fiscal years ended December 31then ended, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLPArth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company Old HomePlace and its consolidated Subsidiaries subsidiaries as of June May 31, 1998, August 31, 1998 and November 30, 2015, 1998 and the related unaudited consolidated statements of operations, members’ stockholders' equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a3.07(a) of the HomePlace Disclosure ScheduleSchedule and except for Claims that will be discharged pursuant to the Plan or the Confirmation Order, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company Old HomePlace and its consolidated Subsidiaries subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The Except for those Subsidiaries listed in Section 3.07(a) of the HomePlace Disclosure Schedule, the financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 3.07 have been, consolidated with those of the CompanyOld HomePlace.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 3.07(b) of the HomePlace Disclosure Schedule, since the HomePlace Unaudited Financial Statement Date (i) subject to the limitations imposed on Old HomePlace and its Subsidiaries by the Bankruptcy Court, the Bankruptcy Code and the Plan, the business of the Company Old HomePlace and the its Subsidiaries has been operated in all material materia respects in the ordinary course, (ii) course consistent with past practice and there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed material adverse change in the Financial StatementsBusiness or Condition of Old HomePlace, (ii) for Liabilities incurred after June 30, 2015 other than those occurring as a result of general economic or financial conditions or other developments which are not unique to Old HomePlace and its Subsidiaries but also affect other Persons who participate or are engaged in the ordinary course lines of business consistent with past practice in which Old HomePlace and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether participate or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesare engaged.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the The audited consolidated balance sheets of the Company and its consolidated Subsidiaries Borrower as of December 31the Fiscal Year ended September 30, 2014, 2013 and 20122011, and the related audited consolidated statements of operationsoperation, members’ stockholders equity and cash flows and related notes (including supporting footnote disclosures) for each the Fiscal Years then ended, with the opinion of the years ended December 31EFP R▇▇▇▇▇▇▇▇, 2014LLC, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect heretofore furnished to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30Lender, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP (except for consistently applied throughout the absence of footnotes periods indicated, are all true and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present correct in all material respects and present fairly the consolidated financial condition of IEC, IECW&C, GTC, SCB and DRTL at the date of said financial statements and the results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyFiscal Year then ended. The financial condition and results of operations of each Subsidiary are, and for all periods referred to statements described in this Section 3.08 8.6 are collectively called the “Financial Statements”. The Credit Parties as of such dates did not have beenany significant liabilities, consolidated with those contingent or otherwise, including liabilities for taxes or any unusual forward or long-term commitments which were not disclosed by or reserved against in the Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the CompanyCredit Parties.
(b) Except for On and as of the execution and delivery date of this Agreement Agreement, and after giving effect to all Debt (including the Loans) and Liens created by the Credit Parties in connection therewith and the transactions to take place pursuant hereto on or prior to GTC Transaction, the Closing Date Celmet Transaction and as disclosed in Section 3.08 of the Disclosure ScheduleSCB Transaction, since the Unaudited Financial Statement Date (i) the business sum of the Company assets, at a fair valuation, of the Borrower (standing alone) and the Subsidiaries has been operated in all material respects in the ordinary courseCredit Parties (taken as a whole) will exceed its and their debts, (ii) there the Borrower (standing alone) and the Credit Parties (taken as a whole) has and have not been any Company Material Adverse Effect incurred and (iii) no action has been taken thatdoes or do not intend to incur, if taken after the date hereofand does or do not believe that it or they will incur, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) debts beyond its or their ability to pay such debts as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiessuch debts mature, and (iii) for Liabilities set forth the Borrower (standing alone) and the Credit Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 8.6(b), “debt” means any liability on Section 3.08(ca claim, and “claim” means (i) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilitiesright to payment, whether or not such Liabilities would a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be required by GAAP computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbecome an actual or matured liability.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered made available to Purchaser the Investors true and complete copies of the following financial statements:
(i) Financial Statements. The information contained in the Financial Statements shall be substantially similar to the information contained in the audited consolidated balance sheets sheets, income statements and statements of cash flow of Tianwei Yingli for the Company and its consolidated Subsidiaries as of years ended on December 31, 2014, 2013 2004 and 2012, 2005 (the "ACTUAL ANNUAL FINANCIAL STATEMENTS") and the related audited unaudited consolidated balance sheets, income statements and statements of operationscash flow of Tianwei Yingli for the six months ended June 30, members’ equity 2006 (the "ACTUAL INTERIM FINANCIAL STATEMENTS"), each of which shall have been audited (in the case of the Actual Annual Financial Statements) or reviewed (in the case of the Actual Interim Financial Statements) by KPMG Huazhen and cash flows and related notes shall be delivered to the Investors as soon as it is released by KPMG Huazhen but no later than sixty (60) days following the Closing. The net income for each of the years ended on December 31, 2014, 2013 2004 and 2012 together with a true and correct copy 2005 as indicated in the Actual Annual Financial Statements shall not be less than ninety five percent (95%) of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets net income for each of the Company and its consolidated Subsidiaries as of corresponding years indicated in the Financial Statements. The net income for the six months ended on June 30, 2015, and 2006 as indicated in the related unaudited consolidated statements Actual Interim Financial Statements shall not be less than ninety percent (90%) of operations, members’ equity and cash flows its counterpart for the portion of the fiscal year then ended. Except as set forth corresponding period indicated in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the CompanyStatements.
(b) Except for the execution and delivery of this Agreement the Transaction Documents and the transactions to take place pursuant hereto thereto on or prior to the Closing Date and or as disclosed in Section 3.08 of the Disclosure Schedule, since June 30, 2006 until the Unaudited Financial Statement Date (i) Closing Date, the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) course consistent with past practice and there has not been any change in the Business or Condition of the Company that has or would reasonably be expected to have a Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)Effect.
(c) Except (i) To the Knowledge of the Warrantors, except as and to the extent disclosed reflected in the Financial StatementsStatements described in paragraph (a) of this Section or as set forth in the Disclosure Schedule, (ii) and except for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedulepractice, neither the Company nor any of its Subsidiaries Subsidiary has any Liabilitiesmaterial Liabilities of any nature (whether accrued, whether absolute, contingent or not such Liabilities would be otherwise) required by US GAAP to be reflected set forth on a consolidated balance sheet of the Company and its Subsidiariesor in the notes thereto.
Appears in 1 contract
Sources: Series B Preferred Share Purchase Agreement (Yingli Green Energy Holding Co LTD)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the The audited consolidated balance sheets of the Company and its consolidated Subsidiaries Borrower as of December 31, 2014, 2013 and 2012, and for the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years Fiscal Year ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June September 30, 2015, and the related statements of operation, stockholders equity and cash flows (including supporting footnote disclosures) for the Fiscal Years then ended, with the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇, once the same have been furnished to the Lender, will have been prepared in accordance with GAAP consistently applied throughout the periods indicated, will be true and correct in all material respects and will present fairly the financial condition of IEC, IECW&C, GTC, SCB (to the extent relevant) and DRTL at the date of said financial statements and the results of operations for the Fiscal Year then ended. The financial statements described in this Section 8.6(a)(i) are collectively called the “Financial Statements”. The Credit Parties as of such dates did not have any significant liabilities, contingent or otherwise, including liabilities for taxes or any unusual forward or long-term commitments which were not disclosed by or reserved against in the Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the Credit Parties and (ii) the unaudited consolidated balance sheets of Borrower as of and for the Fiscal Year ended September 30, 2015, and the related statements of operationsoperation, members’ stockholders equity and cash flows for the portion of the fiscal year Fiscal Years then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were have been prepared by Borrower in accordance with GAAP (except for consistently applied throughout the absence of footnotes periods indicated, are true and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present correct in all material respects and present fairly the consolidated financial condition of IEC, IECW&C, GTC, SCB (to the extent relevant) and DRTL at the date of said financial statements and the results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyFiscal Year then ended. The unaudited financial condition and results of operations of each Subsidiary are, and for all periods referred to statements described in this Section 3.08 have been, consolidated with those of 8.6(a)(ii) are collectively called the Company“Unaudited Financial Statements.”
(b) Except for On and as of the execution and delivery date of this Agreement Agreement, and after giving effect to all Debt (including the transactions to take place pursuant hereto on or prior to Loans) and Liens created by the Closing Date and as disclosed Credit Parties in Section 3.08 of the Disclosure Scheduleconnection herewith, since the Unaudited Financial Statement Date (i) the business sum of the Company assets, at a fair valuation, of the Borrower (standing alone) and the Subsidiaries has been operated in all material respects in the ordinary courseCredit Parties (taken as a whole) will exceed its and their debts, (ii) there the Borrower (standing alone) and the Credit Parties (taken as a whole) has and have not been any Company Material Adverse Effect incurred and (iii) no action has been taken thatdoes or do not intend to incur, if taken after the date hereofand does or do not believe that it or they will incur, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) debts beyond its or their ability to pay such debts as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiessuch debts mature, and (iii) for Liabilities set forth the Borrower (standing alone) and the Credit Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 8.6(b), “debt” means any liability on Section 3.08(ca claim, and “claim” means (i) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilitiesright to payment, whether or not such Liabilities would a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be required by GAAP computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbecome an actual or matured liability.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statementsstatements of the Acquired Companies (collectively, and, as of the Closing Date, together with each of the financial statements of the Acquired Companies that have been delivered to Purchaser that are described in paragraph 3 of Exhibit C of the Debt Commitment Letter, the “Financial Statements”) have been made available to Purchaser:
(ia) the audited balance sheets of the Company Company, NHGC, New Athens and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, MPP and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ changes in member’s equity and cash flows for the portion years ending December 31, 2012 and 2013;
(b) the (i) audited consolidated balance sheet of New MACH Gen and its subsidiaries and the fiscal year then endedrelated audited statement of operations, changes in member’s equity and cash flows and (ii) unaudited balance sheet of New MACH Gen and each of its subsidiaries and the related unaudited statement of operations, changes in member’s equity and cash flows for each Acquired Company, in the case of each of clauses (i) and (ii), for the period beginning May 1, 2014 and ending December 31, 2014; and
(c) the (i) unaudited consolidated balance sheet of New MACH Gen and its subsidiaries and the related unaudited statement of operations, changes in member’s equity and cash flows and (ii) unaudited balance sheet of New MACH Gen and its subsidiaries and the related unaudited statement of operations, changes in member’s equity and cash flows for each Acquired Company, in the case of each of clauses (i) and (ii), for the period beginning January 1, 2015 and ending March 31, 2015. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedulethereto, all such financial statements Financial Statements were prepared in accordance with GAAP (except for using the absence of footnotes same accounting principles, policies and changes resulting from audits and year-end adjustments methods as have historically been used in connection with the case calculation of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) items reflected thereon and fairly present in all material respects the consolidated financial condition and results of operations of the applicable Acquired Company and its consolidated Subsidiaries subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to subject to, in this Section 3.08 have been, consolidated with those the case of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the unaudited Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in normally recurring year-end audit adjustments and the ordinary course absence of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesfootnotes thereto.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Talen Energy Supply, LLC)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete Attached hereto as Schedule 3.7(a) are copies of the following financial statements:
Company’s (i) the audited unaudited consolidated balance sheets of the Company and its consolidated Subsidiaries sheet as of December 31, 2014, 2013 2008 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, 2007 and the related unaudited consolidated statements of operationsincome, memberscash flow and stockholders’ equity and cash flows for the portion period then ended (collectively, the “Company Financial Statements”) and (ii) an unaudited consolidated balance sheet as of June 30, 2009 (the fiscal year “Balance Sheet Date”), and the related unaudited statements of income, cash flow and stockholders’ equity for the six months then endedended (the “Interim Financials”). Except The Company Financials and the Interim Financials (collectively referred as set forth the “Financials”) are true and correct in the notes thereto all material respects and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were have been prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated and consistent with each other (except for that the absence of Financials do not contain footnotes and changes resulting from audits other presentation items that may be required by GAAP). The Financials present fairly in all material respects the Company’s consolidated financial condition, operating results and year-end adjustments cash flows as of the dates and during the periods indicated therein, subject in the case of the Unaudited Interim Financials to normal year-end adjustments, which are not material in amount or significance in any individual case or in the aggregate. The Company’s unaudited consolidated balance sheet as of the Balance Sheet Date is referred to hereinafter as the “Current Balance Sheet.” The books and records of the Company and each Subsidiary are materially correct and complete and have been, and are being maintained in all material respects in accordance with applicable legal and accounting requirements and the Financials are consistent with such books and records.
(b) The Monthly Financial Statements have been prepared in good faith.
(c) Except as set forth on the effect attached Schedule 3.7(c), the Company and its Subsidiaries have no Liability arising out of which is notany transaction entered into at or prior to the Closing Date, or any action or inaction at or prior to the Closing Date, or any state of facts existing at or prior to the Closing Date that would reasonably likely to, individually or in the aggregate, materialhave a Material Adverse Effect, other than (i) and fairly present liabilities reflected on the face of Current Balance Sheet, (ii) current liabilities incurred in all material respects the consolidated financial condition and results Ordinary Course of operations Business since the date of the Company and its consolidated Subsidiaries as Current Balance Sheet (none of which results from, arises out of, relates to, is in the respective dates thereof and for the respective periods covered thereby. The financial condition and results nature of, or was caused by any breach of operations contract, breach of each Subsidiary arewarranty, tort, infringement, or violation of law), and (iii) executory obligations under any contract to which the Company is a party or is bound (but not liabilities for all periods referred to in this Section 3.08 have been, consolidated with those any breach of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto any such contracts occurring on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (iDate) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iiiiv) no action has been taken that, if taken after liabilities incurred in connection with the date hereof, would require the consent of Purchaser under Section 6.04(b)transactions contemplated by this Agreement.
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this AgreementThe Audited Financial Statements, the Company has delivered Company's unaudited consolidated financial statements referred to Purchaser true in Section 5.1(n) and complete copies of the following financial statements:
TexCal Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the audited periods covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the consolidated financial condition of the Company and its Subsidiaries or the TexCal Subsidiaries, as the case may be, as of the dates thereof and results of operations for the periods covered thereby (subject, in the case of the Company's unaudited consolidated financial statements referred to in Section 5.1(n), to normal and immaterial audit adjustments); and (iii) except as specifically disclosed in Schedule 6.14(a) or (A) in the case of the Company and its Subsidiaries, in the Audited Financial Statements or the Company's unaudited consolidated financial statements referred to in Section 5.1(n) and (B) in the case of the TexCal Subsidiaries, the TexCal Audited Financial Statements, neither the Company and its Subsidiaries, on the one hand, nor the TexCal Subsidiaries, on the other hand, respectively, have any material Indebtedness or other material liabilities, direct or contingent, as of the date hereof, including liabilities for Taxes, material commitments or Contingent Obligations.
(b) The unaudited pro forma consolidated balance sheets sheet of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 20122005, and the related audited unaudited pro forma consolidated statements of operations, members’ equity income and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its Subsidiaries on a consolidated Subsidiaries basis for the year ended December 31, 2005 (including the notes thereto) (collectively, the "Pro Forma Financial Statements"), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date or the beginning of such period) to (i) the TexCal Acquisition, (ii) the extensions of credit to be made under this Agreement and the First Lien Credit Agreement prior to or in connection with the TexCal Acquisition and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have been prepared based on assumptions that the Company believes are reasonable as of June 30, 2015the Effective Time, and present fairly on a pro forma basis the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such estimated financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition position and results of operations of the Company and its Subsidiaries on a consolidated Subsidiaries basis as of the respective dates thereof at December 31, 2005 and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areyear then ended, and for all periods referred to in this Section 3.08 have been, consolidated with those of assuming that the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects events specified in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)preceding sentence had actually occurred at such date.
(c) Except During the period from December 31, 2005 to and including the date hereof there has been no Disposition by the Company or any Subsidiaries of any material part of its business or Property, other than (i) as the dividend of the membership interests in ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30Dispositions permitted by Section 8.2(a), 2015 in (b), (c), (d) or (e).
(d) Since December 31, 2004 through the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed LiabilitiesEffective Time, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries there has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbeen no Material Adverse Effect.
Appears in 1 contract
Sources: Term Loan Agreement (Venoco, Inc.)
Financial Statements and Condition. (ai) Prior The Borrower has furnished to the execution of this Agreement, the Company has delivered to Purchaser true Lender complete and complete accurate copies of the following financial statements:
(i) the audited Consolidated balance sheets of the Company Borrower and its Subsidiaries as of December 31 in each of the years 1992 through 1996 and consolidated statements of operations, shareholders' equity and cash flows for each such year, in each case accompanied by a report thereon containing an unqualified opinion by KPMG Peat Marwick LLP but reflecting, as appropriate, modifications resulting from any change in accounting principles. Such audited financial statements have been prepared in accordance with GAAP consistently applied except as therein noted, and present fairly the Consolidated financial position of the Borrower and its Subsidiaries as of such dates and the Consolidated results of their operations and changes in their cash flows for such periods.
(ii) The Borrower has also furnished to the Lender a complete and accurate copy of the unaudited condensed Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2014, 2013 1996 and 2012, and the related audited unaudited condensed consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity operations and cash flows for the portion of the fiscal year twelve months then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such Such unaudited financial statements were have been prepared in accordance with GAAP GAAP, on the same basis as the audited financial statements of the Borrower, and, in the opinion of management, reflect all adjustments (except consisting of normal recurring adjustments) necessary for a fair presentation of the absence Consolidated financial position of footnotes the Borrower and its Subsidiaries as of such date and the Consolidated results of their operations and changes resulting from audits and year-end adjustments in the case their cash flows for such period.
(iii) All Annual Reports of the Unaudited Financial Statements Borrower on Form 10-K and Quarterly Reports of the effect of which is notBorrower on Form 10-Q delivered after the date hereof, individually or were prepared in the aggregateconformity with GAAP consistently applied, material) except as otherwise noted therein, and fairly present in all material respects the consolidated Consolidated financial condition and results of operations position of the Company Borrower and its consolidated Subsidiaries as of at the respective dates thereof and the Consolidated results of operations and changes in cash flows of the Borrower and its Subsidiaries for each of the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have beensubject, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary coursecase of any unaudited interim financial statements, (ii) there has not been any Company Material Adverse Effect to changes resulting from audit and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)normal year-end adjustments.
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Revolving Credit Agreement (Insurance Auto Auctions Inc /Ca)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Parent has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited The unaudited consolidated balance sheets of the Company and its consolidated Subsidiaries subsidiaries as of December 31September 30, 20141994 and September 30, 2013 and 2012, 1995 and the related audited consolidated statements unaudited statement of operations, members’ equity and cash flows and related notes earnings for each of the years ended December 31then ended;
(ii) the unaudited consolidated balance sheets of the Company and its consolidated subsidiaries as of June 30, 20141996 and the related unaudited consolidated statement of earnings for the portion of the fiscal year then ended;
(iii) the audited consolidated balance sheets of Spalding and its consolidated subsidiaries as of September 30, 2013 1994 and 2012 September 30, 1995 and the related audited statement of earnings, shareholders' equity and cash flows for each of the fiscal years then ended, together with a true and correct copy of the report on such audited information by Ernst Deloitte & Young LLP, and all letters from such accountants with respect to the results of such auditsTouche; and
(iiiv) the unaudited consolidated balance sheets of the Company Spalding and its consolidated Subsidiaries subsidiaries as of June 30, 20151995 and June 30, 1996 and the related unaudited consolidated statements statement of operations, members’ equity earnings and cash flows for the portion of the fiscal year then ended. Except as set forth in the any notes thereto and or as disclosed in Section 3.08(a2.09(a) of the Disclosure Schedule, all such financial statements (including the notes thereto) were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition position and results of operations and, in the case of Spalding, shareholders' equity (in the case of audited statements only) and cash flows, of the Company and its Spalding and their consolidated Subsidiaries subsidiaries, as of the respective dates thereof and for the respective periods covered thereby, subject, in the case of interim statements (which do not contain any notes), to normal year end adjustments. The Except for those Subsidiaries listed in Section 2.09(a) of the Disclosure Schedule, the financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 2.09 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (E&s Holdings Corp)
Financial Statements and Condition. (a) Prior to the execution of this AgreementThe Audited Financial Statements, the Company has delivered Company's unaudited consolidated financial statements referred to Purchaser true in Section 5.1(n) and complete copies of the following financial statements:
TexCal Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the audited periods covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the consolidated financial condition of the Company and its Subsidiaries or the TexCal Subsidiaries, as the case may be, as of the dates thereof and results of operations for the periods covered thereby (subject, in the case of the Company's unaudited consolidated financial statements referred to in Section 5.1(n), to normal and immaterial audit adjustments); and (iii) except as specifically disclosed in Schedule 6.14(a) or (A) in the case of the Company and its Subsidiaries, in the Audited Financial Statements or the Company's unaudited consolidated financial statements referred to in Section 5.1(n) and (B) in the case of the TexCal Subsidiaries, the TexCal Audited Financial Statements, neither the Company and its Subsidiaries, on the one hand, nor the TexCal Subsidiaries, on the other hand, respectively, have any material Indebtedness or other material liabilities, direct or contingent, as of the date hereof, including liabilities for Taxes, material commitments or Contingent Obligations.
(b) The unaudited pro forma consolidated balance sheets sheet of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 20122005, and the related audited unaudited pro forma consolidated statements of operations, members’ equity income and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its Subsidiaries on a consolidated Subsidiaries basis for the year ended December 31, 2005 (including the notes thereto) (collectively, the "Pro Forma Financial Statements"), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date or the beginning of such period) to (i) the TexCal Acquisition, (ii) the extensions of credit to be made under this Agreement and the Second Lien Term Loan Agreement prior to or in connection with the TexCal Acquisition and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have been prepared based on assumptions that the Company believes are reasonable as of June 30, 2015the Effective Time, and present fairly on a pro forma basis the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such estimated financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition position and results of operations of the Company and its Subsidiaries on a consolidated Subsidiaries basis as of the respective dates thereof at December 31, 2005 and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areyear then ended, and for all periods referred to in this Section 3.08 have been, consolidated with those of assuming that the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects events specified in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)preceding sentence had actually occurred at such date.
(c) Except During the period from December 31, 2005 to and including the date hereof there has been no Disposition by the Company or any Subsidiaries of any material part of its business or Property, other than (i) as the dividend of the membership interests in ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30Dispositions permitted by Section 8.2(a), 2015 in (b), (c), (d) or (e).
(d) Since December 31, 2004 through the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed LiabilitiesEffective Time, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries there has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbeen no Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Venoco, Inc.)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries Seller as of June 30and for the fiscal period then ended, 2015December 31, 1995, and the related unaudited consolidated balance sheet, and statements of operations, members’ equity operations as of and cash flows for the portion of fiscal period then ended November 30, 1997 (collectively, the fiscal year then ended"Financial Statements"). Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all All such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries Seller as of the respective dates thereof and for the respective periods covered thereby. The financial condition Comp-Est and results ▇▇▇▇▇▇▇▇▇ (but not the other Stockholders) further represent and warrant (i) that the unaudited balance sheets and statement of operations of each Subsidiary areSeller as of, and for the period then ended, December 31, 1997 will be prepared in the same manner, and the results will not be materially less favorable than the unaudited balance sheet and statement of operation of Seller as of, and for the period then ended, November 30, 1997, and (ii) that the unaudited balance sheets and the statement of operations of Seller as of, and for the fiscal period then ended, December 31, 1995 are consistent with all periods referred to in this Section 3.08 have beentax returns filed by Seller for the period ended December 31, consolidated with those of the Company1995.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedulehereto, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company change, event or development which has had or is reasonably expected to have a Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)Effect.
(c) Since the Financial Statement Date, Seller has not incurred any liabilities of a kind required by GAAP to be set forth on a balance sheet, other than liabilities incurred in the ordinary course of business, none of which is material to Seller's financial condition or Business.
(d) Except as set forth on Schedule 5.08 or as expressly authorized or required by this Agreement, since the Financial Statement Date Seller has not, and covenants and agrees that from the date of this Agreement until the Closing Date Seller will not have:
(i) amended its certificate of incorporation or by-laws or comparable instruments or entered into a Business Combination (as and hereinafter defined) with any other Person, or changed or agreed to rearrange in any material respect the extent disclosed in the Financial Statements, character of its business;
(ii) issued, sold or purchased options or rights to subscribe to, or entered into any contracts or commitments to issue, sell or purchase, any shares of its capital stock;
(iii) declared, set aside or paid any dividends or declared or made any other distributions of any kind to its stockholders, or made any direct or indirect redemption, retirement, purchase or other acquisition of any shares of its capital stock; provided, however, that after the date of this Agreement Seller may pay cash distributions to the Stockholders if immediately following the payment of such cash distributions Seller's Net Assets are not less than $125,000,00; provided, further, however, that notwithstanding anything contained in this Agreement to the contrary, if the Stock Election is given, immediately preceding the Closing, the Seller may distribute its interests in the Joint Venture Agreement to the Stockholders or an entity wholly-owned by the Stockholders;
(iv) knowingly waived any right of material value to its business;
(v) made any wage or salary increase or other compensation payable or to become payable or bonus, or increase in any other direct or indirect compensation, for Liabilities incurred after June 30or to any of its officers, 2015 directors, employees, consultants, agents or other representatives, or any accrual for or commitment or agreement to make or pay the same, other than increases made in the ordinary course of business consistent with past practice and expressly included provided, however, that the increase in the calculation of Final Assumed Liabilities, and (iii) for Liabilities ▇▇▇▇▇▇▇▇▇'▇ salary set forth on Section 3.08(cSchedule 5.08(d)(v) is not in the ordinary course of the Disclosure Schedule, neither the Company business nor consistent with past practice;
(vi) entered into any transactions with any of its Subsidiaries has Affiliates, stockholders, officers, directors, employees, consultants, agents or other representatives (other than employment arrangements made in the ordinary course of business consistent with past practice), or any LiabilitiesAffiliate of any stockholder, whether officer, director, consultant, employee, agent or not other representative;
(vii) made any payment or commitment to pay any severance or termination pay to any Person or any of its officers, directors, employees, consultants, agents or other representatives, other than payments or commitments to pay such Liabilities would be Persons or its officers, directors, employees in the ordinary course of business;
(viii) (A) entered into any Real Property Lease (provided, however that Seller may enter into a new Real Property Lease with respect to the relocation or renewal of a Real Property Lease for the primary office of Seller), (B) sold, abandoned or made any other disposition of any of its assets or properties other than in the ordinary course of business consistent with past practice; or (C) granted or suffered any Lien on any of its assets or properties other than Permitted Liens and sales of inventory in the ordinary course of business;
(ix) except for inventory or equipment acquired in the ordinary course of business, made any acquisition of all or any part of the assets, properties, capital stock or business of any other Person; or
(x) made any change in accounting methods or practices or made any changes in depreciation or amortization policies or rates adopted by it;
(xi) entered into any Contract or renewed, amended or modified any Contract containing any provision or covenant prohibiting or materially limiting the ability of Seller to engage in any business activity or compete with any Person;
(xii) issued any note, bond or other debt security, created, incurred or assumed any indebtedness for borrowed money, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in an aggregate amount exceeding $100,000.00;
(xiii) entered into any Contract or renewed, amended or modified any Contract of a nature required by GAAP to be reflected disclosed on a consolidated balance sheet Schedule 5.16(a), except for those Contracts made in the ordinary course of business consistent with past practice within the 12 months prior to the date of this Agreement except that all such contracts shall comply with the terms of the Database License Agreement;
(xiv) made any capital expenditures or commitments for capital expenditures in an aggregate amount exceeding $40,000.00 except for those capital expenditures for computer equipment made in the ordinary course of business consistent with past practice; or
(xv) entered into, amended or terminated any (A) employment agreement or (B) adopted, entered into or amended any arrangement which is, or would be, a Company and its SubsidiariesPlan.
Appears in 1 contract
Sources: Option and Acquisition Agreement (CCC Information Services Group Inc)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company Seller and its consolidated Subsidiaries subsidiaries as of December 31, 20141996, 2013 1997 and 20121998, and the related audited consolidated statements of operations, members’ stockholders' equity and cash flows and related notes for each of the fiscal years ended December 31then ended, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst Deloitte & Young LLP, and all letters from such accountants with respect to Touche (the results of such audits; and"Financial Statements");
(ii) the unaudited balance sheets sheet of the Company Seller and its consolidated Subsidiaries subsidiaries as of June 30, 20151999, and the related unaudited consolidated statements of operations, members’ stockholders' equity and cash flows for the portion of the fiscal year then endedended (the "Unaudited Financial Statements"); and
(iii) the pro forma, unaudited balance sheets of KAC and SLC, taken as a whole, as of September 30, 1999 and the pro forma, unaudited statements of operations for KAC and SLC, taken as a whole, for the 9 months ended September 30, 1999 (the "Pro Forma Financial Statements"). Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all All such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements, as set forth in the notes thereto, and in the case of the Pro Forma Financial Statements as set forth in Section 2.09(a) of the effect of Disclosure Schedule, to which is not, individually or in the aggregate, materialcertain adjustments set forth thereon have been made) and fairly present in all material respects the consolidated financial condition and results of operations of the Company Seller and its consolidated Subsidiaries subsidiaries (or in the case of the Pro Forma Financial Statements, KAC and SLC) as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary arethereby except, and for all periods referred to in this Section 3.08 have been, consolidated with those the case of the CompanyUnaudited Financial Statements and the Pro Forma Financial Statements, for the absence of footnotes and normal year-end adjustments which an audit would reveal.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleDate, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect Effect, other than those occurring as a result of general economic or financial conditions or other developments which are not unique to the Businesses but also affect other Persons who participate or are engaged in the lines of business in which Seller and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)Businesses participate or are engaged.
(c) Except (i) Since the Unaudited Financial Statement Date, except as and to the extent disclosed in Section 2.09(c) of the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Disclosure Schedule or any other Section 3.08(c) of the Disclosure Schedule, neither KAC nor SLC has incurred any Liabilities which in the Company nor any aggregate, other than liabilities incurred in the ordinary course of its Subsidiaries has any Liabilitiesbusiness, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesexceed $50,000.
Appears in 1 contract
Sources: Stock Purchase Agreement (Baldwin Piano & Organ Co /De/)
Financial Statements and Condition. (a) Prior The Borrower has ---------------------------------- furnished to the execution of this Agreement, the Company has delivered to Purchaser true and complete each Lender copies of the following financial statements:
(i) the audited consolidated balance sheets sheet of the Company Borrower and its consolidated Subsidiaries as of December 31at June 30, 2014, 2013 and 20121998, and the related audited consolidated statements of operationsincome, members’ equity retained earnings and cash flows and related notes flow for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report fiscal year ending on such audited information by date, with the opinion thereon of Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited consolidated balance sheets sheet of the Company Borrower and its consolidated Subsidiaries as of June 30at March 31, 20151999, and the related unaudited consolidated statements of operationsincome, members’ equity retained earnings and cash flows flow of the Borrower and its consolidated Subsidiaries for the portion of the fiscal year then endedquarter ending on such date. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all All such financial statements were prepared (including in each case related schedules and notes) are complete and correct and present fairly, in accordance with GAAP consistently applied throughout the periods involved, in all material respects, the consolidated financial position of the Borrower and its consolidated Subsidiaries as at their respective dates and the results of operations and the cash flow for such periods (except for the absence of footnotes and subject, as to interim statements, to changes resulting from audits and normal year-end adjustments adjustments). Except as disclosed (i) in the case Borrower's Annual Report on Form 10K for the year ended June 30, 1998, (ii) in any other report filed by the Borrower with the Securities and Exchange Commission after June 30, 1998 but prior to the Fifth Amendment Date, (iii) in any press release issued by the Borrower after June 30, 1998 but prior to the Fifth Amendment Date or (iv) in writing to the Agent by the Borrower prior to the Fifth Amendment Date, since June 30, 1998, there has been no material adverse change in the financial condition, operations, or business of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company Borrower and its consolidated Subsidiaries taken as a whole. After giving effect to the transactions contemplated by the Transaction Documents (as defined in the Omnibus Agreement), each of the respective dates thereof Borrower and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the CompanyRestricted Subsidiaries is Solvent.
(bq) Except for The Credit Agreement is amended by deleting Section 6.1.(m) in its entirety and substituting in its place the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.following:
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this AgreementTrue, the Company has delivered to Purchaser true correct and complete copies of the following financial statements:
(i) the audited balance sheets unaudited combined carve-out statements of operations and net assets of the Company and its consolidated Subsidiaries Acquired Companies taken as a whole, as of December 31, 20142021 and December 31, 2013 and 20122022, and the related audited consolidated interim unaudited combined carve-out statements of operations, members’ equity operations and cash flows and related notes net assets for each of the years six (6) months ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 20152023 (the “Interim Financial Statements”) have been made available to Purchasers (collectively, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended“Financial Statements”). Except as set forth in the notes thereto thereto, all Financial Statements were prepared from the applicable books and as disclosed in Section 3.08(a) records of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for Acquired Companies on a consistent basis using the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) Accounting Principles and fairly present in all material respects the consolidated financial condition and results of operations of the each Acquired Company and its consolidated Subsidiaries subsidiaries as of the respective dates thereof and for the respective periods covered thereby, subject to normally recurring year-end audit adjustments and the absence of footnotes thereto, which, in each case, shall not be material in the aggregate. The Acquired Companies’ system of internal controls over financial condition and results reporting is designed to provide reasonable assurance in all material respects that transactions in respect of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and Acquired Companies are recorded only in accordance with the Subsidiaries has been operated in all material respects in authorization of management of the ordinary courseAcquired Companies. To the Knowledge of Sellers, (iii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statementslast three (3) years any fraud with respect to any Acquired Company or Sellers that involves the management, officers, or any other current or former employee, director or manager of either Seller or an Acquired Company who has (or had) an active role in the preparation of financial statements or the internal accounting controls used by an Acquired Company and (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) no Acquired Company has received any written claim or allegation regarding any of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesforegoing.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered to Purchaser true and complete copies of the following financial statementsBuyer:
(i) the unaudited balance sheet of Seller as at June 30, 1996 and the audited balance sheets sheet of the Company and its consolidated Subsidiaries Seller as of December 31at June 30, 2014, 2013 and 20121997, and the related audited consolidated statements of operationsoperations and retained earnings, members’ equity and cash flows and related notes for each of the years then ended December 31, 2014, 2013 and 2012 together with a true and correct copy of (the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; andA1996 AND 1997 FINANCIAL STATEMENTS");
(ii) the unaudited an audited balance sheets sheet of the Company and its consolidated Subsidiaries Seller as of at June 30, 20151998 (I.E., the Effective Date Balance Sheet) and the related unaudited consolidated audited statements of operations, members’ equity income and retained earnings and cash flows for the portion of the fiscal year then ended. Except as set forth in , including, without limitation, the notes thereto thereto, together with the report thereon of W&M (the "1998 FINANCIAL STATEMENTS"); and
(iii) unaudited balance sheets as at December 31, 1996 and 1997 and as disclosed in Section 3.08(aat September 30, 1998 (the "UNAUDITED BALANCE SHEETS") and the related unaudited statements of income and retained earnings for the calendar years 1996 and 1997 and for the nine-month period ended September 30, 1998 (the "UNAUDITED FINANCIAL STATEMENTS").
(b) Each of the Disclosure Schedulefinancial statements described in this Section, and the notes thereto, fairly present the financial condition, the results of operations, and the cash flows of Seller as at the respective dates of, and for the periods referred to in, such financial statements, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments GAAP, subject, in the case of the Unaudited Financial Statements Statements, to (i) normal recurring year-end adjustments (the effect of which is will not, individually or in the aggregate, be material) and fairly present (ii) the absence of notes (that, if presented, would not differ materially from those included in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered therebyEffective Date Balance Sheet). The financial condition and results of operations of each Subsidiary are, and for all periods statements referred to in this Section 3.08 have been, consolidated with those 5.7 reflect the consistent application of GAAP throughout the Company.
(b) Except for the execution and delivery periods involved. No financial statements of this Agreement and the transactions any entity other than Seller are required by GAAP to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects be included in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent financial statements of Purchaser under Section 6.04(b)Seller.
(c) Except The Acquired Net Assets, as of the Effective Time and as of the Closing Date, less any Permitted Distributions (but excluding from the amount of the Permitted Distributions payments by Seller during the Interim Period to Shareholder of up to (i) $10,000 a week as salary and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30$16,000 a month as rent on the Mansfield Facility), 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiesis not, and will not be, less than Two Million Four Hundred Thousand Dollars (iii) for Liabilities set forth on Section 3.08(c) $2,400,000.00), and, as of the Disclosure ScheduleClosing Date, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet tangible net book value of the Company and its SubsidiariesAcquired Business shall equal the sum of the Acquired Net Assets, less any Permitted Distributions, plus the Interim Earnings, as defined in Section 4.3.
(d) The Interim Earnings are greater than zero.
(e) Since the Effective Time, Seller has not paid more than $16,000 per month as rent for the use of the Mansfield Facility.
Appears in 1 contract
Financial Statements and Condition. The Borrower’s unaudited financial statements, dated as of January 31, 2003, as heretofore furnished to Lender, fairly present the financial condition of Borrower. Since such date, there has been no material adverse change in the financial condition or assets of Borrower. Borrower has filed all forms, reports and documents required to be filed by it with the SEC since November 20, 2001 and has heretofore made available to the Lender, in the form filed with the SEC (excluding any exhibits thereto), (i) its Annual Report on Form 10-KSB for the fiscal year ended April 30, 2002, and (ii) all other forms, reports, registration statements and other documents filed by Borrower with the SEC since November 20, 2001 (the forms, reports, registration statements and other documents referred to in clauses (i) and (ii) above being referred to herein, collectively, as the “Borrower SEC Reports”). To the best of Borrower’s knowledge, the Borrower SEC Reports and any other forms, reports and other documents filed by Borrower with the SEC after the date of this Agreement (i) were or will be prepared in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder and (ii) did not at the time they were filed, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were or are made, not misleading. Lender acknowledges or represents that:
(a) Prior He has received and reviewed the Borrower SEC Reports;
(b) He is able to bear the execution economic risk of the transaction described in this Agreement;
(c) He understands the risk of investment in Borrower, including the Company effect of subordination of the Loan to Borrower’s senior creditor, PKM;
(d) He has delivered been given access to Purchaser true full and complete copies information regarding Borrower, including the opportunity to meet with officers, ask questions of and receive answers from such officers, and review such documents as he may have requested, and has utilized such access to his satisfaction for the following financial statements:purpose of obtaining information in addition to, or verifying information included in, Borrower SEC Reports and other information disclosed by Borrower orally or in writing;
(ie) Neither the audited balance sheets Note nor the Warrant have been registered under the Securities Act of 1933, as amended (the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits“Act”) or state securities laws; and
(iif) The Note and Warrant are being purchased for his own account and for investment and without the unaudited balance sheets intention of reselling or redistributing the Company and its consolidated Subsidiaries as of June 30, 2015same, and that if Lender should determine to dispose or transfer the related unaudited consolidated statements Note or Warrant, he will not do so without (1) obtaining an opinion of operationscounsel satisfactory to Borrower that such proposed disposition or transfer may lawfully be made without registration under the Act, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth or (2) such registrations are in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Companyeffect.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Loan Agreement (Medicalcv Inc)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered to Purchaser true and complete copies of Buyer financial statements for the following financial statements:
(i) the audited balance sheets of the Company and its consolidated Subsidiaries as of periods January 1, 1997 through December 31, 20141997, 2013 and 2012January 1, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended 1998 through December 31, 2014, 2013 and 2012 together with a true and correct copy of 1998 (the report on such audited information by Ernst & Young LLP"Financial Statements"), and all letters from such accountants with respect to for the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of period January 1, 1999 through June 30, 2015, 1999 (the "Interim Statements"). The Financial Statements are audited and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except United States generally accepted accounting principles consistently applied throughout the period covered by the Financial Statements. Seller's independent auditors have provided a review report covering the Interim Statements. The Financial Statements and the Interim Statements constitute true and complete financial statements for the absence of footnotes periods specified and changes resulting from audits are in accordance with the books and year-end adjustments in the case records of the Unaudited Financial Statements Seller. Such statements present fairly the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations position of the Company and its consolidated Subsidiaries Business as of the respective dates thereof and the results of operations and cash flows of the Business for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company.
(b) Except for Seller has no direct or indirect indebtedness, liabilities, claims, losses, damages, deficiencies, obligations or responsibilities, liquidated or unliquidated, accrued, absolute, contingent, or otherwise ("LIABILITIES") which in any way encumber the execution Assets and delivery of this Agreement and no Liabilities otherwise exist that encumber the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)Assets.
(c) Except Since June 30, 1999, Seller has not:
(i) as and to the extent disclosed suffered any change, event or condition that, in any case or in the Financial Statementsaggregate, has had or could reasonably be expected to have a material adverse effect upon the Business or the Assets or Seller's ability to consummate the transactions contemplated herein and in the other Transaction Documents;
(ii) for Liabilities entered into any material transaction, contract or commitment relating to the Business in any manner; and
(iii) incurred after June 30, 2015 or paid any liability or obligation not in the ordinary course of business business, consistent with past custom and practice including as to quantity and expressly included in frequency with respect to the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its SubsidiariesBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (National Information Consortium)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the The audited consolidated balance sheets of the Company and its consolidated Subsidiaries Borrower as of December 31the Fiscal Year ended September 30, 2014, 2013 and 20122009, and the related audited consolidated statements of operationsoperation, members’ stockholders equity and cash flows and related notes (including supporting footnote disclosures) for each the Fiscal Years then ended, with the opinion of EFP ▇▇▇▇▇▇▇▇▇, all heretofore furnished to the years ended December 31Lender, 2014have been prepared in accordance with GAAP consistently applied throughout the periods indicated, 2013 and 2012 together with a are all true and correct copy in all material respects and present fairly the financial condition of IEC and IECW&C at the report on such audited information by Ernst & Young LLP, date of said financial statements and all letters from such accountants with respect to the results of such audits; and
(ii) operations for the unaudited Fiscal Year then ended. The internally prepared balance sheets sheet of GTC for the Company Fiscal Year-to-date and its consolidated Subsidiaries as of June 30October, 20152009 Fiscal Month end, and the related unaudited consolidated statements of operationsoperation, members’ stockholders equity and cash flows for the portion of the fiscal year periods then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were heretofore furnished to the Lender, have been prepared in accordance with GAAP (except for absent footnote disclosures and customary year end adjustments) consistently applied throughout the absence of footnotes periods indicated, are all true and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present correct in all material respects and present fairly the consolidated financial condition of GTC at the date of said financial statements and the results of GTC operations of for the Company and its consolidated Subsidiaries fiscal period then ending. The internally prepared balance sheet for the Credit Parties as of the respective dates thereof October, 2009 Fiscal Month end is true and for correct in all material respects and fairly represents the respective periods covered therebyinformation therein applicable to the Closing Date Borrowing Base Certificate of the Credit Parties. The financial condition and results of operations of each Subsidiary are, and for all periods referred to statements described in this Section 3.08 9.6 are collectively called the “Financial Statements”. The Credit Parties as of such dates did not have beenany significant liabilities, consolidated with those contingent or otherwise, including liabilities for taxes or any unusual forward or long-term commitments which were not disclosed by or reserved against in the Financial Statements, and at the present time there are no material unrealized or anticipated losses from any unfavorable commitments of the CompanyCredit Parties.
(b) Except for On and as of the execution and delivery date of this Agreement Agreement, and after giving effect to all Debt (including the Loans) and Liens created by the Credit Parties in connection therewith and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleGTC Transaction, since the Unaudited Financial Statement Date (i) the business sum of the Company assets, at a fair valuation, of the Borrower (standing alone) and the Subsidiaries has been operated in all material respects in the ordinary courseCredit Parties (taken as a whole) will exceed its and their debts, (ii) there the Borrower (standing alone) and the Credit Parties (taken as a whole) has and have not been any Company Material Adverse Effect incurred and (iii) no action has been taken thatdoes or do not intend to incur, if taken after the date hereofand does or do not believe that it or they will incur, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) debts beyond its or their ability to pay such debts as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilitiessuch debts mature, and (iii) for Liabilities set forth the Borrower (standing alone) and the Credit Parties (taken as a whole) will have sufficient capital with which to conduct its and their respective businesses. For purposes of this Section 9.6(b), “debt” means any liability on Section 3.08(ca claim, and “claim” means (i) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilitiesright to payment, whether or not such Liabilities would a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, secured or unsecured. The amount of contingent liabilities at any time shall be required by GAAP computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbecome an actual or matured liability.
Appears in 1 contract
Financial Statements and Condition. Full Disclosure.
(a) Prior The Borrower has heretofore submitted to the execution of this AgreementLender its consolidated and consolidating audited financial statements for the Fiscal Year ended September 30, 1997, its Annual Report on Form 10-K for the Company has delivered to Purchaser true and complete copies of the following financial statements:
(i) the audited balance sheets of the Company Fiscal Year ended September 30, 1997 and its consolidated Subsidiaries as of Quarterly Report on Form 10-Q for the fiscal quarter ended on December 31, 20141997. The Borrower represents that, 2013 and 2012except as disclosed therein, and the related audited consolidated statements all of operationssaid financial information are true, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true complete and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects as of such respective dates; that such financial information fairly presents the consolidated financial condition and the results of operations of the Company Borrower and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areindicated therein (subject, and for all periods referred to in this Section 3.08 have been, consolidated with those the case of the CompanyQuarterly Reports on Form 10-Q, to changes resulting form normal year-end adjustments); that such financial statements disclose all material liabilities, direct or contingent of the Borrower and its consolidated Subsidiaries as of the dates hereof and the periods indicated; that such financial statements have been prepared in accordance with GAAP consistently maintained throughout the periods involved; and that there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole, from that set forth in said financial statements.
(b) Except for as set forth in Schedule 4.12 hereto, upon consummation of the execution transactions contemplated under the Loan Documents, the Borrower will not have any outstanding Debt other than the obligations and delivery of indebtedness under this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date other Loan Documents and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities trade debt incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbusiness.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to Attached as Section 3.07(a) of the execution of this Agreement, the Company has delivered to Purchaser true and complete Seller Disclosure Schedule are copies of the following financial statements:
(i) the consolidated audited balance sheets sheet, statements of the Company operations and its consolidated Subsidiaries statements of cash flow of Seller as of December 31and for the fiscal years ended September 26, 20142020 (the “Most Recent Balance Sheet Date”) and September 28, 2013 2019 and 2012September 29, 2018 (collectively, the “Year-End Financial Statements”), and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited consolidated balance sheets sheet and income statement of the Company and its consolidated Subsidiaries Seller as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of eight (8) month fiscal period ending May 31, 2021 (the fiscal year then ended“Interim Financial Statements” and collectively with the Year-End Financial Statements, the “Financial Statements”). Except as set forth in the notes thereto and as disclosed in on Section 3.08(a3.07(a) of the Seller Disclosure Schedule; (A) each balance sheet included in the Financial Statements fairly presents in all material respects the financial position of Seller and its Subsidiaries as of the respective dates thereof, and the statements of operations and statement of cash flows included in the Financial Statements fairly present, in all such financial statements were prepared in accordance with GAAP (except material respects, the results of operations and cash flows of Seller and its Subsidiaries for the absence of footnotes and changes resulting from audits and year-end adjustments respective periods indicated therein; (B) the balance sheet included in the case Interim Financial Statements fairly presents in all material respects the financial position of Seller and its Subsidiaries as of the Unaudited date thereof; and (C) the statements of operations and cash flows included in the Interim Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition revenues and results of operations expenses for the periods then ended (subject, in the case of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areInterim Financial Statements, to normal year-end audit adjustments, and for all periods referred to in this Section 3.08 have been, consolidated with those the absence of the Companyfootnotes and other presentation items).
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 3.07(b) of the Seller Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business Schedule sets forth a true and correct itemization of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after outstanding Closing Indebtedness as of the date hereof, would require of the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Interim Financial Statements, (ii) for Liabilities incurred after June 30including debtor, 2015 in creditor, maturity date, collateral, if any, securing Closing Indebtedness and the ordinary course outstanding principal balance owed to each creditor under such Closing Indebtedness as of business consistent with past practice and expressly included in the calculation date of Final Assumed Liabilities, and (iii) for Liabilities the Interim Financial Statements. Except as set forth on Section 3.08(c3.07(b) of the Seller Disclosure Schedule, neither other than the Company nor Closing Indebtedness, Seller does not have any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesoutstanding material indebtedness for borrowed money.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this the Original Agreement, the Company has delivered made available to Purchaser true and complete copies of the following financial statements:
(i) the audited consolidated balance sheets sheet of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 20122003, and the related audited consolidated statements of operations, members’ stockholders' equity and cash flows and related notes for each of the years ended December 31fiscal period then ended, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, independent auditors, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited consolidated balance sheets sheet of the Company and its consolidated Subsidiaries as of June 30December 31, 20152004, and the related unaudited consolidated statements of operations, members’ stockholders' equity and cash flows for the portion of the fiscal year then endedended (the "Unaudited Financials"). Except as set forth in the notes thereto and or as disclosed in Section 3.08(a) 3.09 of the Company Disclosure Schedule, all such financial statements were were, and the financial statements to be delivered to Purchaser pursuant to Section 5.06 will be, prepared in accordance with GAAP applied on a basis consistent throughout the periods indicated and consistent with each other (except for the absence of footnotes and changes resulting from audits and year-end adjustments as may be indicated in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, materialnotes thereto) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and or as disclosed in Section 3.08 3.09 of the Company Disclosure Schedule, since the Unaudited Financial Statement Date (i) December 31, 2004 the business of the Company and the Subsidiaries Pharma has been operated in all material respects in the ordinary course, (ii) course and there has not been any material adverse change in the Business or Condition of the Company, other than (i) any adverse change, effect, event, occurrence, state of facts or development to the extent attributable to the announcement or pendency of this Agreement or the transactions contemplated hereby, (ii) any adverse change, effect, event, occurrence, state of facts or development after the date of the Original Agreement, attributable to conditions affecting the industry in which the Company Material Adverse Effect and Pharma operate as a whole, or the United States economy or financial markets, (iii) no any adverse change, effect, event, occurrence, state of facts or development arising from or relating to compliance with the terms of this Agreement, or action taken, or failed to be taken, to which Purchaser has been consented, (iv) changes in Laws after the date of the Original Agreement, or (v) changes in GAAP or regulatory accounting principles after the date of the Original Agreement; provided that with respect to clauses (ii) and (iv), such change, effect, event, circumstance, occurrence or state of facts (A) does not specifically relate to (or have the effect of specifically relating to) the Company and/or Pharma and (B) is not materially more adverse to the Company and/or Pharma than to other companies operating in the industry in which the Company and Pharma operate. Except as set forth in Section 3.09 of the Company Disclosure Schedule, since September 30, 2004 neither the Company nor Pharma has taken thatany action or engaged in any transaction which, if taken or engaged in after the date hereofof the Original Agreement, would require the consent of Purchaser under pursuant to Section 6.04(b)5.07 or 5.08.
(c) Except (i) as and to the extent disclosed reflected in the Financial StatementsStatements described in paragraph (a) of this Section or as set forth in Section 3.09 of the Company Disclosure Schedule, (ii) and except for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedulepractice, neither the Company nor any of its Subsidiaries Pharma has any LiabilitiesLiabilities of any nature (whether accrued, whether absolute, contingent or not such Liabilities would be otherwise) required by GAAP to be reflected set forth on a consolidated balance sheet of the Company or in the notes thereto.
(d) The Company and its SubsidiariesPharma maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements of the Company and to maintain accountability for assets; (iii) access to the Company's assets is permitted only in accordance with management's authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Neither the Company nor Pharma is a party to or otherwise involved in any "off-balance sheet arrangements" (as defined in Item 303 of Regulation S-K promulgated by the SEC).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Protein Design Labs Inc/De)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has HEI and HEA have delivered to Purchaser true and complete copies of the following financial statements:
(i) Merger Sub the audited pro forma combined balance sheets of the Company Company, ChipPAC Korea and its consolidated Subsidiaries ChipPAC Shanghai I as of June 30, 1998 (the "Financial Statement Date"), and December 31, 20141997 and 1996 and the unaudited pro forma combined balance sheet as of September 30, 2013 1998, as if the Company, ChipPAC Korea and 2012, ChipPAC Shanghai I had existed on a combined basis as of such dates and the related audited consolidated pro forma combined statements of operations, members’ stockholders' equity and cash flows for the six months ended on the Financial Statement Date and related notes for each of the years ended December 31, 20141997, 2013 1996 and 2012 1995 and unaudited pro forma combined statement of operations, stockholders' equity and cash flows for the nine months ended September 30, 1998, together with a true and correct copy of the report on such audited information financial statements by Ernst & Young LLP, and all letters from such accountants with respect to PriceWaterhouseCoopers (the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, 1998 pro forma combined balance sheet hereinafter referred to as the "Balance Sheet" and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion all of the fiscal year then endedaforementioned financial statements are collectively referred to herein as the "Financial Statements"). Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedulethereto, all such pro forma combined financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated combined financial condition and results of operations of the Company Company, ChipPAC Korea and its consolidated Subsidiaries ChipPAC Shanghai I as of the respective dates thereof and for the respective periods covered thereby, subject, in the case of the unaudited financial statements, to normal year-end adjustments and the absence of notes. The financial condition Schedule 2.2(g)(ii), Schedule 2.2(g)(iii), Schedule 2.2(g)(iv) and results Schedule 2.2(g)(vi) reflect the Company's best estimates of operations of each Subsidiary are, and for all periods referred to in this Section 3.08 have been, consolidated with those the Indebtedness of the Company, ChipPAC Korea and ChipPAC Shanghai as of the dates set forth therein.
(b) Except for Since the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of there has been no Material Adverse Effect on the Company and the Subsidiaries no event has been operated occurred which could reasonably be expected to result in all material respects in the ordinary course, (ii) there has not been any Company a Material Adverse Effect and (iii) no action has been taken that, if taken after on the date hereof, would require the consent of Purchaser under Section 6.04(b)Company.
(c) Except (i) as set forth on the Balance Sheet, the Company, ChipPAC Korea and ChipPAC Shanghai are not subject to the extent disclosed in the Financial Statements, (ii) for Liabilities any Liability other than trade payables and accrued expenses incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure ScheduleCompany, ChipPAC Korea and ChipPAC Shanghai.
(d) Since the Financial Statement Date, neither the Company Company, ChipPAC Korea nor ChipPAC Shanghai has taken any action described in clause (a) through (n), inclusive, of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet Section 5.5 of the Company and its Subsidiariesthis Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Recapitalization and Merger (Chippac LTD)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company Seller has delivered made available to Purchaser true and complete copies of the following financial statements:
(i) the audited balance sheets unaudited special-purpose statement of assets and liabilities of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries as of June 30, 2015, PCS Business and the related unaudited consolidated statements special-purpose statement of operations, members’ equity revenues less direct and cash flows certain allocated expenses before income taxes for the portion of fiscal years ended June 30, 2005 and 2006, including the notes thereto for the fiscal year then endedended June 30, 2005 (the “Unaudited Financial Statements”). Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure ScheduleSchedule 2.8, all such financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations net assets of the Company PCS Business (other than the SIP Modules, Gen 5.5 Technology and Gen 6 Technology) and its consolidated Subsidiaries as revenue less direct and certain allocated expenses before taxes for the years ended June 30, 2005 and 2006, on the basis of accounting described in Note 1 (for the fiscal year ended June 30, 2005 attached thereto). Subject to Note 1 (for the fiscal year ended June 30, 2005), the Unaudited Financial Statements have been derived from the historical accounting records of the respective dates thereof Seller and for its Subsidiaries and reflect significant allocations and management’s estimates of the respective periods covered therebycosts of goods and services provided to the PCS Business by the Seller and its Affiliates. The financial condition Unaudited Financial Statements (i) are not intended to be a presentation in conformity with GAAP and results of operations of each Subsidiary are, (ii) do not necessarily represent the net assets and for all periods referred to in this Section 3.08 have been, consolidated with those revenues less direct and certain allocated expenses before taxes of the CompanyPCS Business (not including the SIP Modules, Gen 5.5 Technology and Gen 6 Technology) had it been operated as a separate legal entity.
(b) No material revenues from any products identified in Section 12.1 as being excluded from the agreement of Seller not to compete are reflected in the results of operation of the PCS Business included in the Unaudited Financial Statements or to be included in the Audited Financial Statements.
(c) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleSchedule 2.8, since June 30, 2006 until the Unaudited Financial Statement Date (i) date hereof, the business of the Company and the Subsidiaries PCS Business has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Master Purchase Agreement (International Rectifier Corp /De/)
Financial Statements and Condition. (a) Prior to the execution of this Agreement, the Company has Sellers have delivered to Purchaser true and complete copies a copy of the following financial statements:
(i) the audited balance sheets sheet of the Company and its consolidated Subsidiaries Business as of December 31, 20142001 (the "December Balance Sheet"), 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its consolidated Subsidiaries which is attached hereto as of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then endedSchedule 2.05(a). Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of Schedule 2.05(a), the Disclosure Schedule, all such financial statements were December Balance Sheet was prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present presents in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries Business as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areDecember 31, and for all periods referred to in this Section 3.08 have been, consolidated with those of the Company2001.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure ScheduleSchedule 2.05(b), since December 31, 2001, the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries Business has been operated in all material respects in the ordinary course, (ii) course and there has not been any Company Material Adverse Effect and (iii) material adverse change in the Condition of the Business, and, to the Knowledge of Sellers, no action event has been taken that, if taken after the date hereof, occurred or circumstance exists that would require the consent of Purchaser under Section 6.04(b)be likely to result in such a material adverse change.
(c) To the Knowledge of Sellers, as of the date hereof, there are no outstanding Liabilities of Sellers relating to the Business, except as set forth on the December Balance Sheet and except for Liabilities incurred in the ordinary course of business since December 31, 2001 and the Assumed Liabilities. Schedule 2.05(c) sets forth as of December 31, 2001 the principal amount of Indebtedness outstanding, including accrued interest payable and the names and addresses of each borrower, lender and guarantor thereof and a good faith estimate of such information as of the Closing Date.
(d) Except as set forth on Schedule 2.05(d), since December 31, 2001, no Seller has (i) as and to the extent disclosed declared or paid any dividend on or made any other distribution (whether in the Financial Statementscash, equity or property) in respect of any of its equity interests, (ii) split, combined or reclassified any of its equity interests, (iii) issued or authorized the issuance of any other securities in respect of or repurchased or otherwise acquired, any of its equity interests, (iv) granted any options or membership interests or other rights to acquire securities of the Sellers in lieu of or in substitution for Liabilities incurred after June 30any of its equity interests, 2015 or (v) made any payment to any Affiliate of any Seller (other than a Seller) other than payments of compensation and reimbursements of expenses in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and practice.
(iiie) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.Attached hereto as Schedule 2.05
Appears in 1 contract
Financial Statements and Condition. Full Disclosure.
(a) Prior Obligors have heretofore submitted to Lender the execution of this Agreement, the Company has delivered to Purchaser true and complete copies consolidated financial statements of the following Obligors filed with Zygo's Form 10-K filed with the Securities and Exchange Commission for the Fiscal Year ended June 30, 2000 and the consolidated financial statements:
(i) the audited balance sheets statements of the Company Obligors filed with the Obligor's Form 10-Q filed with the Securities and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and Exchange Commission for the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years fiscal quarter ended December 31, 2014, 2013 and 2012 together with a 2000. Obligors represents that all of said financial information is true and correct copy of in all material respects; such financial information fairly presents the report on such audited information by Ernst & Young LLP, financial condition and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets operations of the Company and its consolidated Subsidiaries Obligors as of June 30, 2015, the dates thereof and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all periods indicated therein; that such financial statements were disclose all material liabilities, direct or contingent of the Obligors as of the dates thereof and the periods indicated; that such financial statements have been prepared in accordance with GAAP (except for consistently maintained throughout the absence of footnotes periods involved; and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is notthat, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The date of said financial condition and results of operations of each Subsidiary areinformation submitted, and for all periods referred to in this Section 3.08 have been, consolidated with those there were no material unrealized or unanticipated losses from any unfavorable commitments of the CompanyObligors as of the dates; and that there has been no material adverse change in the business, assets, operations, prospects or condition, financial or otherwise of the Obligors as of the dates from that set forth in said financial statements.
(b) Except for The Obligors are, and on the execution Drawdown Date of each Loan and delivery of this Agreement and on the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 date of the Disclosure Scheduleissuance of each Letter of Credit, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary coursewill be, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken thatSolvent, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b)on a consolidated basis.
(c) Except (i) as and to To the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course best of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Scheduleeach Obligor's knowledge, neither this Agreement nor any written information, exhibit, report, document, or certificate furnished to Lender by or on behalf of any Obligor in connection with this Agreement contained or contains any material misstatement of fact or omitted or omits to state a material fact necessary to make the Company nor statements contained herein or therein not misleading. There is no fact known to any Obligor that materially adversely affects or that, insofar as any Obligor can now reasonably foresee, may materially adversely affect, the condition, financial or otherwise, operations, properties, or prospects of any Obligor or its Subsidiaries or the ability of any Obligor or any of its Subsidiaries has to carry out their respective obligations under any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its SubsidiariesLoan Documents to which any of them is or will be a party.
Appears in 1 contract
Sources: Credit Agreement (Zygo Corp)
Financial Statements and Condition. (a) Prior to The audited financial statements of Parent and its Subsidiaries for the execution of this Agreementyear ended January 3, the Company has delivered to Purchaser true and complete copies of the following financial statements:
1998, present fairly in accordance with GAAP (i) the audited balance sheets financial position of Borrower as of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 2012, and the related audited consolidated statements of operations, members’ equity and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results date of such audits; and
financial statements and (ii) the unaudited balance sheets results of operations of Borrower for such period. Borrower had no direct or indirect contingent liabilities as of the Company and its consolidated Subsidiaries as date of June 30, 2015, and the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such financial statements were which are not reserved for therein or which in accordance with GAAP would have to be included in footnotes thereto, such financial statements have been prepared in accordance with GAAP applied on a basis consistently maintained throughout the period involved (except for the absence of footnotes subject to normal year end adjustments), and changes resulting from audits and year-end adjustments there has been no material adverse change in the case business, operations, liabilities, assets, properties, prospects or condition (financial or otherwise) of Borrower since December 31, 1997. There has been no material adverse change in the business, operations, liabilities, assets, properties, prospects or condition (financial or otherwise) of any Credit Party since November 7, 1998.
(b) The Agent has been furnished projections of the Unaudited Financial Statements future performance of Borrower and its Subsidiaries. The projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the effect time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by such projections may differ from the projected results. No fact is known to any Credit Party which could reasonably be expected to have a Material Adverse Effect, that has not been set forth in the financial statements referred to in this Section 15.6 or disclosed herein or otherwise disclosed to the Agent in writing prior to the most recent date on which the representation contained in this Section 15.6 is made or repeated.
(c) The budget dated as of October 12, 1998, a copy of which is notattached hereto as Exhibit 15.6(c), individually or in is the aggregate, material) and fairly present in all material respects budget of the consolidated financial condition and results of operations of the Company Parent and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areFiscal Year ending January 2, and for all periods referred 1999, required to in this be delivered pursuant to Section 3.08 have been, consolidated with those of the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after the date hereof, would require the consent of Purchaser under Section 6.04(b12.1(l).
(c) Except (i) as and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30, 2015 in the ordinary course of business consistent with past practice and expressly included in the calculation of Final Assumed Liabilities, and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries.
Appears in 1 contract
Financial Statements and Condition. (a) Prior to the execution of this AgreementThe Audited Financial Statements, the Company has delivered to Purchaser true Company’s audited consolidated financial statements as of and complete copies of for the following financial statements:
year ended December 31, 2005 and the TexCal Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the consolidated financial condition of the Company and its Subsidiaries or the TexCal Subsidiaries, as the case may be, as of the dates thereof and results of operations for the periods covered thereby; and (iii) except as specifically disclosed in Schedule 6.14(a) or (A) in the case of the Company and its Subsidiaries, in the Audited Financial Statements or the Company’s audited consolidated financial statements as of and for the year ended December 31, 2005 and (B) in the case of the TexCal Subsidiaries, the TexCal Audited Financial Statements, neither the Company and its Subsidiaries, on the one hand, nor the TexCal Subsidiaries, on the other hand, respectively, have any material Indebtedness or other material liabilities, direct or contingent, as of the Effective Date, including liabilities for Taxes, material commitments or Contingent Obligations.
(b) The unaudited pro forma consolidated balance sheets sheet of the Company and its consolidated Subsidiaries as of December 31, 2014, 2013 and 20122005, and the related audited unaudited pro forma consolidated statements of operations, members’ equity income and cash flows and related notes for each of the years ended December 31, 2014, 2013 and 2012 together with a true and correct copy of the report on such audited information by Ernst & Young LLP, and all letters from such accountants with respect to the results of such audits; and
(ii) the unaudited balance sheets of the Company and its Subsidiaries on a consolidated Subsidiaries basis for the year ended December 31, 2005 (including the notes thereto) (collectively, the “Pro Forma Financial Statements”), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date or the beginning of such period) to (i) the TexCal Acquisition, (ii) the extensions of credit to be made under this Agreement and the First Lien Credit Agreement prior to or in connection with the TexCal Acquisition and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have been prepared based on assumptions that the Company believes are reasonable as of June 30, 2015the Effective Time, and present fairly on a pro forma basis the related unaudited consolidated statements of operations, members’ equity and cash flows for the portion of the fiscal year then ended. Except as set forth in the notes thereto and as disclosed in Section 3.08(a) of the Disclosure Schedule, all such estimated financial statements were prepared in accordance with GAAP (except for the absence of footnotes and changes resulting from audits and year-end adjustments in the case of the Unaudited Financial Statements the effect of which is not, individually or in the aggregate, material) and fairly present in all material respects the consolidated financial condition position and results of operations of the Company and its Subsidiaries on a consolidated Subsidiaries basis as of the respective dates thereof at December 31, 2005 and for the respective periods covered thereby. The financial condition and results of operations of each Subsidiary areyear then ended, and for all periods referred to in this Section 3.08 have been, consolidated with those of assuming that the Company.
(b) Except for the execution and delivery of this Agreement and the transactions to take place pursuant hereto on or prior to the Closing Date and as disclosed in Section 3.08 of the Disclosure Schedule, since the Unaudited Financial Statement Date (i) the business of the Company and the Subsidiaries has been operated in all material respects events specified in the ordinary course, (ii) there has not been any Company Material Adverse Effect and (iii) no action has been taken that, if taken after preceding sentence had actually occurred at such date or at the date hereof, would require the consent beginning of Purchaser under Section 6.04(b)such period.
(c) Except During the period from December 31, 2005 to and including the Restatement Effective Date there has been no Disposition by the Company or any Subsidiaries of any material part of its business or Property, other than (i) as the dividend of the membership interests in 6▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC and to the extent disclosed in the Financial Statements, (ii) for Liabilities incurred after June 30Dispositions permitted by Section 8.2(a), 2015 in (b), (c), (d) or (e).
(d) Since December 31, 2004 through the ordinary course of business consistent with past practice and expressly included in Effective Time or the calculation of Final Assumed LiabilitiesRestatement Effective Time (as applicable), and (iii) for Liabilities set forth on Section 3.08(c) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries there has any Liabilities, whether or not such Liabilities would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiariesbeen no Material Adverse Effect.
Appears in 1 contract
Sources: Term Loan Agreement (Venoco, Inc.)