Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due). (b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects. (c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 2 contracts
Sources: Credit Agreement (Vesta Insurance Group Inc), Credit Agreement (Vesta Insurance Group Inc)
Financial Matters. (a) The consolidated balance sheet of the Borrower has heretofore furnished to and its Subsidiaries as at December 31, 1995, and the Lender copies related consolidated statements of (i) income, retained earnings and cash flows of the audited Borrower and its Subsidiaries for the fiscal year then ended, certified by Coopers & Lybr▇▇▇, ▇.L.P. and the consolidated balance sheets of the Borrower and its Subsidiaries as of December 31at June 30, 1998, 1997, and 1996, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the six months then ended, certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as of at June 30, 19991996, and the related said statements of income, stockholders' equity retained earnings and cash flows for the nine-month period six months then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower Since June 30, 1996, there has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each Neither the Borrower nor any of its Subsidiaries had at June 30, 1996 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in subsection (a) above or in the notes thereto.
(d) The Projections that have been delivered to each Lender, were prepared on the basis of the assumptions expressed therein, which assumptions the Borrower believed to be reasonable based on the information available to the Borrower at the time so furnished and on the Closing Date.
(e) The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Felcor/Lax Holdings Lp), Revolving Credit Agreement (Felcor Suite Hotels Inc)
Financial Matters. (a) The Borrower has heretofore Consolidated balance sheet of WHX and its Consolidated Subsidiaries as at December 31, 1994, and the related Consolidated statements of income, retained earnings and cash flow of WHX and its Subsidiaries for the fiscal year then ended, certified by Price Waterhouse, and the Consolidated balance sheet of the Loan Party Consolidated Group as at September 30, 1995, and the related Consolidated statements of income, retained earnings and cash flow of the Loan Party Consolidated Group for the nine months then ended, duly certified by the chief financial officer of Holdings, copies of which have been furnished to each Lender Party, fairly present, subject, in the Lender copies case of (i) the audited consolidated said balance sheets as at September 30, 1995, and said statements of income and cash flow for the Borrower nine months then ended, to year-end audit adjustments, the Consolidated financial condition of such Person and its Subsidiaries as at such dates and the Consolidated results of the operations of such Person and its Subsidiaries for the period ended on such date, all in conformity with GAAP.
(b) Since December 31, 19981994 and through the Effective Date, 1997there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect.
(c) None of the Loan Parties or any of its Subsidiaries had at December 31, 1994 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment that is required by GAAP to be included in a balance sheet which is not reflected in the balance sheet referred to in subsection (a) above or in the notes thereto (other than in connection with the Receivables Securitization).
(d) As of the Effective Date, each Loan Party is, and 1996each Loan Party and its Subsidiaries are, and the related statements of incomeon a consolidated basis, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and Solvent.
(iie) the The unaudited pro forma consolidated balance sheet of the Borrower and its Subsidiaries Consolidated Subsidiaries, a copy of which has been delivered to each Lender Party, has been prepared as of June 30December 31, 19991995 and reflects as of such date, and on a pro forma basis, the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the projected Consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedSubsidiaries. Except as fully reflected in the most recent Such pro forma financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.any
Appears in 1 contract
Sources: Credit Agreement (WHX Corp)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of the (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1999, 1998, and 1997, and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 1999, 2000 and the related statements of income, cash flows and stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The unaudited pro forma balance sheet of the Borrower as of March 31, 2001, a copy of which has heretofore furnished been delivered to the Lender copies Administrative Agent, gives pro forma effect to the consummation of the Annual Statements of each of the Insurance Subsidiaries Transactions, all as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 2000, 1999 and 1998, 1997, and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June November 30, 19992001, and the related statements of income, cash flows and stockholders' equity and cash flows for the nine11-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolutethe type required to be disclosed by GAAP. Consolidated EBITDA for the 11-month period ended November 30, contingent or otherwise and whether or 2001 is not due)less than $151,250,000.
(b) The unaudited pro forma balance sheet of the Borrower as of November 30, 2001, a copy of which has heretofore furnished been delivered to the Lender copies Agent, gives pro forma effect to the issuance of the Annual Statements Subordinated Notes, the initial extensions of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995credit made under this Agreement, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
Appears in 1 contract
Sources: Credit Agreement (Us Oncology Inc)
Financial Matters. (a) The Borrower Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Swiss Holdings and its Subsidiaries as of December 31, 1998, 1997, 2011 and 1996, 2010 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years or period then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersDeloitte thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Swiss Holdings and its Subsidiaries as of June 30March 31, 19992012, and the related statements of income, stockholders' ’ equity and cash flows for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly fairly, in all material respects, the financial condition position of the Borrower Swiss Holdings and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedindicated. Except as fully reflected for liabilities and obligations disclosed or provided for in the most recent financial statements referred to above and the notes thereto or the most recent financial statements and the notes thereto delivered pursuant to Section 6.1, as of the date of such financial statements, none of the Credit Parties had any material liability or obligation that, in accordance with GAAP, would have been required to have been disclosed or provided for in such financial statements or the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Material Insurance Subsidiaries Subsidiary as of December 31, 1998, 1997, 1996 2011 and 1995, 2010 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority Authority, (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, including the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustmentsthereto), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Material Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Material Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, including reserves, policy and contract claims and statutory liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, Neither (i) will have capital sufficient the board of directors of such Credit Party, a committee thereof or an authorized officer of such Credit Party has concluded that any financial statement previously furnished to carry on its businesses as conducted and as proposed to the Administrative Agent or any Lender should no longer be conductedrelied upon because of an error, nor (ii) will have assets with has such Credit Party been advised by its auditors that a fair saleable value, determined on a going concern basis, (A) previously issued audit report or interim review cannot less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturerelied upon.
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)
Financial Matters. (a) The consolidated balance sheet of the Borrower has heretofore furnished to and its Subsidiaries at February 1, 1997 and the Lender copies related consolidated statements of (i) operations, shareholders' equity and cash flows of the audited Borrower and its Subsidiaries for the fiscal year then ended, certified by Deloitte & Touche and the consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998at October 4, 1997, and 1996the related consolidated statements of operations, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the thirty-five weeks then ended, certified by the chief financial officer of the Borrower copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets 77 at October 4, 1997, and the related said statements of incomeoperations, stockholdersshareholders' equity and cash flows for the fiscal years thirty-five weeks then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998Since February 1, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each The unaudited pro forma consolidated balance sheet of the Borrower and its Subsidiaries, after giving a copy of which has been delivered to each Lender prior to the date of this Agreement, gives effect to the consummation of the transactions contemplated herebyPlan of Reorganization, (i) will have capital sufficient to carry on its businesses the financing thereof and all fees and expenses payable in connection therewith and reflect as conducted and as proposed to be conductedof the date thereof, (ii) will have assets with a fair saleable value, determined on a going concern pro forma basis, (A) not less than the amount required consolidated financial condition of the Borrower and its Subsidiaries assuming the consummation of the Plan of Reorganization and the financing thereof had actually occurred on such date, and the projections and assumptions expressed therein were reasonably based on the information available to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued Borrower at the amount that can reasonably be expected to become absolute time so furnished and matured)on the Closing Date.
(d) The Borrower is, and (iii) will not intend toon a consolidated basis the Borrower and its Subsidiaries are, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Holdings and its Subsidiaries as of December 31, 19982006, 1997, 2005 and 1996, 2004 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years or period then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersDeloitte thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Holdings and its Subsidiaries as of June September 30, 19992007, and the related statements of income, stockholders' ’ equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly fairly, in all material respects, the financial condition position of the Borrower Holdings and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedindicated. Except as fully reflected for liabilities and obligations disclosed or provided for in the most recent financial statements referred to above and the notes thereto or the most recent financial statements and the notes thereto delivered pursuant to Section 6.1, as of the date of such financial statements, none of the Borrowers had any material liability or obligation that, in accordance with GAAP, would have been required to have been disclosed or provided for in such financial statements or the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Material Insurance Subsidiaries Subsidiary as of December 31, 1998, 1997, 1996 2006 and 1995, 2005 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority Authority, (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, including the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustmentsthereto), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Material Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Material Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, including reserves, policy and contract claims and statutory liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, Neither (i) will have capital sufficient the board of directors of any Borrower, a committee thereof or an authorized officer of any Borrower has concluded that any financial statement previously furnished to carry on its businesses as conducted and as proposed to the Administrative Agent or any Lender should no longer be conductedrelied upon because of an error, nor (ii) will have assets with has any Borrower been advised by its auditors that a fair saleable value, determined on a going concern basis, (A) previously issued audit report or interim review cannot less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturerelied upon.
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings LTD)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the Parent, the Borrower and its Subsidiaries as of at December 31, 1998, 19971995, and the related consolidated statements of income, retained earnings and cash flow of the Parent, the Borrower and its Subsidiaries for the fiscal year then ended, certified by KPMG Peat Marwick, and the consolidated balance sheets of the Parent and its Subsidiaries as of March 31, 1996, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows flow of the Parent and its Subsidiaries for the fiscal years three months then ended, together with certified by the opinion chief financial officer of KPMG Peat Marwick thereon or PricewaterhouseCoopersthe Parent, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as of March 31, 1996, and said statements of income, retained earnings and cash flow for the three months then ended, to year-end audit adjustments, the consolidated financial condition of the Parent and its Subsidiaries as at such dates and the consolidated results of the operations of the Parent and its Subsidiaries for the periods ended on such dates, all in conformity with GAAP.
(iib) Since December 31, 1995, there has been no development which has had or is likely to have a material adverse effect on the condition (financial or otherwise), performance, property or prospects of the Parent, the Borrower and the Borrower's Subsidiaries, taken as a single enterprise.
(c) Neither the Borrower nor any of its Subsidiaries had, at December 31, 1995, any obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected on the balance sheet at such date referred to in subsection (a) above or in the notes thereto and which would have a Material Adverse Effect.
(d) The unaudited pro forma consolidated balance sheet of the Parent, the Borrower and its Subsidiaries consolidated Subsidiaries, certified by the chief financial officer of the Borrower as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have having been prepared in accordance conformity with Generally Accepted Accounting Principles GAAP (subjectthe "Pro Forma Balance Sheet"), with respect a copy of which has been delivered to each Lender, has been prepared as of December 31, 1995, adjusted to give effect to the unaudited financial statementsfinancing contemplated hereby and fees and expenses payable in connection herewith, to reflects, as of such date, on a pro forma basis, the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the consolidated financial condition of the Borrower and its Subsidiaries assuming the financings contemplated hereby had actually occurred on a consolidated basis as of the respective dates thereof such date, and the consolidated results of operations of Projections and assumptions expressed therein were reasonably based on the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect information available to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute time so furnished and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureon the Closing Date.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated financial statements (including balance sheets sheets, statements of income and statements of cash flows) of the Borrower and its Subsidiaries as at December 31, 2004, 2005 and 2006, and for the Fiscal Years then ended, and (ii) the unaudited consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 19982007 and for the twelve (12) months then ended (collectively, 1997the “Financial Statements”).
(b) The Financial Statements (i) have been prepared in accordance with GAAP and Regulation S-X promulgated under the Act on a consistent basis for all periods (subject, in the case of unaudited statements, to the absence of full footnote disclosures, and 1996to normal non-material audit adjustments), (ii) are complete and correct in all material respects, (iii) fairly present the consolidated financial condition of the Borrower and its Subsidiaries as of said dates, and the related statements results of income, stockholders' equity and cash flows their operations for the fiscal years then endedperiods stated, together with (iv) contain and reflect all necessary adjustments and accruals for a fair presentation of the opinion Company’s consolidated financial condition and the results of KPMG Peat Marwick thereon or PricewaterhouseCoopersits consolidated operations as of the dates of and for the periods covered by such Financial Statements, and (v) make full and adequate provision, subject to and in accordance with GAAP, for the various assets and liabilities (including, without limitation, deferred revenues) of the Company and its Subsidiaries, fixed or contingent, and the results of their operations and transactions in their accounts, as of the dates and for the periods referred to therein.
(c) Except as set forth in Schedule 3.01 of the Disclosure Schedule, the Borrower and its Subsidiaries do not have any liabilities, obligations or commitments of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise (collectively “Liabilities and Contingencies”), including, without limitation, Liabilities and Contingencies under employment agreements and with respect to any “earn-outs”, stock appreciation rights, or related compensation obligations, except: (i) Liabilities and Contingencies disclosed in the Financial Statements or footnotes thereto, (ii) Liabilities and Contingencies incurred in the unaudited ordinary course of business and consistent with past practice since the date of the most recent Financial Statements, or (iii) those Liabilities and Contingencies which are not required to be disclosed under GAAP. The reserves, if any, reflected on the consolidated balance sheet of the Borrower and its Subsidiaries as included in the most recent Financial Statements are appropriate and reasonable. Neither the Borrower nor any of June 30its Subsidiaries has had or presently has any Indebtedness for money borrowed, 1999, and the related statements of income, stockholders' equity and cash flows outstanding obligations for the ninepurchase price of property, contingent obligations or liabilities for taxes, or any unusual forward or long-month period then ended. Except term commitments, except as specifically set forth or provided for in the Financial Statements or in Schedule 3.01 of the Disclosure Schedule.
(d) Since the date of the most recent Financial Statements, except for the transactions pursuant to the Loan Documents and except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition 3.01 of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected Disclosure Schedule, there has been no material adverse change in the most recent working capital, condition (financial statements referred to above and the notes theretoor otherwise), there are no material liabilities assets, liabilities, reserves, business, management or obligations with respect to Business Operations of the Borrower or any of its Subsidiaries of any nature whatsoever (whether absoluteSubsidiaries, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein following:
(i) there has been no material change in any assumptions underlying, or in any methods of calculating, any bad debt, contingency or other reserve relating to the Borrower or any Subsidiary;
(ii) there have been (A) no write-downs in the value of any inventory of, and there have been no write-offs as uncollectible of any notes, accounts receivable or other receivables of, the Borrower or any Subsidiary other than write-offs of accounts receivable reserved in full as of the date of the most recent financial statements delivered to the Lender which would not have a Material Adverse Effect, and (B) no reserves established for investments the uncollectibility of any notes, Accounts or other receivables of the Borrower or any Subsidiary except to the extent that same have been disclosed to the Lender in writing and would not, individually or in the valuation thereofaggregate, reservescause the outstanding Advances to exceed the Revolving Credit Commitment;
(iii) no debts have been cancelled, policy no claims or rights of substantial value have been waived and contract claims and statutory liabilitiesno properties or assets (real, personal or mixed, tangible or intangible) have been prepared sold, transferred, or otherwise disposed of by the Borrower or any Subsidiary except (A) dispositions of worn-out or obsolete personal property, and (B) otherwise in the ordinary course of business and consistent with past practice;
(iv) there has been no change in any method of accounting or accounting practice utilized by the Borrower or any Subsidiary;
(v) no material casualty, loss or damage has been suffered by the Borrower or any Subsidiary, regardless of whether such casualty, loss or damage is or was covered by insurance;
(vi) there have been no announced changes in the policies or practices of any customer, supplier or referral source which would reasonably be expected to have a Material Adverse Effect;
(vii) there has been no incurrence by the Company or any Subsidiary of (A) any liability or obligation outside of the ordinary course of business, or (B) any Indebtedness other than Permitted Indebtedness;
(viii) there has been no declaration, setting aside or payment of any dividend or distribution or any other payment of any kind by the Borrower to or in respect of any equity securities of the Borrower; and
(ix) No action described in this Section 3.01(d) has been agreed to be taken by the Borrower or any Subsidiary.
(e) The Borrower and its Subsidiaries have in place adequate systems of internal controls and disclosure controls and procedures sufficient to provide reasonable assurance that (i) transactions are executed in accordance with Statutory Accounting Principles management’s general or specific authorizations, (except ii) transactions are recorded as may be reflected necessary to permit preparation of financial statements in accordance with GAAP and Regulation S-X and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the notes thereto recorded accountability for assets is compared with the existing assets at reasonable intervals and subjectappropriate action is taken with respect to any differences, and (v) the Borrower and its management are able to obtain timely and accurate information regarding the Business Operations and all material transactions relating to the Borrower and the Subsidiaries; and no material deficiency exists with respect to the Quarterly Statements, to the absence Borrower’s or any Subsidiary’s systems of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition internal controls.
(f) All of the respective Insurance Subsidiaries covered thereby SEC Reports, as of the respective dates thereof and the results of operationsthereof, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete complied in all material respects, as applicable, with the Act and the Exchange Act.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Crdentia Corp)
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2017 and 19962018, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 19992019, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the SEC and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its SubsidiariesBorrower, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 19962010, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992011, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month six (6)-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretothereto as of the Restatement Effective Date, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has prepared, and has heretofore furnished to the Lender copies Administrative Agent a copy of, annual projected balance sheets and statements of income and cash flows of the Annual Statements of each of Borrower for the Insurance Subsidiaries as of five (5)-year period beginning with the year ending December 31, 19982010, 1997giving effect to the initial extensions of credit made under this Agreement, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments assumption of the Existing Letters of Credit under this Agreement, and the valuation thereofpayment of transaction fees and expenses related to the foregoing (the “Projections”). In the opinion of management of the Borrower, reservesthe assumptions used in the preparation of the Projections were fair, policy complete and contract claims reasonable when made and statutory liabilities) continue to be fair, complete and reasonable as of the Restatement Effective Date. The Projections have been prepared in accordance with Statutory Accounting Principles (except good faith by the executive and financial personnel of the Borrower, are complete as may be reflected in of the notes thereto Restatement Effective Date and subject, with respect to represent as of the Quarterly Statements, to Restatement Effective Date a reasonable estimate of the absence of notes required by Statutory Accounting Principles future performance and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of Borrower, subject to the respective dates thereof uncertainties and the results of operations, changes approximations inherent in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsprojections.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and maturedmatured in their ordinary course), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturemature in their ordinary course.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of the (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19982003, 19972002, and 19962001, and in each case with the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 1999, 2004 and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower Bo rrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries on a consolidated basis for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The unaudited pro forma balance sheet and income statement of the Borrower has as of September 30, 2004, copies of which have heretofore furnished been delivered to the Lender copies Administrative Agent, give pro forma effect to the amendment and restatement of the Annual Statements of each Loans, the repayment of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectivelyTerminating Indebtedness, the "Historical Statutory Statements"other extensions of credit made under this Agreement, the payment of transaction fees and expenses related to the foregoing and the consummation of the other transactions contemplated hereby, as if such transactions had occurred on such date (the “Pro Forma Balance Sheet”). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsthe transactions described above.
(c) The Borrower has prepared, and has heretofore furnished to the Administrative Agent a copy of, annual projected consolidated balance sheets and statements of income and cash flows of the Borrower and its Subsidiaries through December 31, 2011, giving effect to the transactions contemplated hereby (the “Projections”). In the opinion of management of the Borrower, the assumptions used in the preparation of the Projections were fair, complete and reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The Projections have been prepared in good faith by the executive and financial personnel of the Borrower, are complete and represent a reasonable estimate of the future performance and financial condition of the Borrower and its Subsidiaries, subject to the uncertainties and approximations inherent in any projections.
(d) Each of the Borrower and its Subsidiariesthe Subsidiary Guarantors, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Everest Group and its Subsidiaries as of December 31, 19982015, 1997, 2014 and 1996, 2013 and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersPricewaterhouseCoopers thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Everest Group and its Subsidiaries as of June 30March 31, 19992016, and the related statements of income, stockholders' equity and cash flows for the nine-three month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial 8470562v6 24740.00061 statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly in all material respects the financial condition of the Borrower Everest Group and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Everest Group and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Insurance Subsidiaries Subsidiary as of December 31, 19982015, 1997, 1996 2014 and 1995, 2013 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statements of each Insurance Subsidiary as of March 31, 2016, and for the three month period then ended, as required to be filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, including the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-year end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 1997 and 1996, 1996 and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the each opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersthe independent certified public accounting firm retained by the Borrower thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The unaudited pro forma balance sheet of the Borrower as of September 30, 1999, a copy of which has heretofore furnished been delivered to the Lender copies Administrative Agent, gives pro forma effect to the consummation of the Annual Statements initial extensions of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995credit made under this Agreement, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
Appears in 1 contract
Sources: Credit Agreement (Everest Reinsurance Holdings Inc)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Parent and its Subsidiaries as of December 31, 19982002, 19972001 and 2000, and 1996, and in each case with the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Parent and its Subsidiaries as of June 30, 1999the last day of the third fiscal quarter of fiscal year 2003, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month period then ended, (iii) the unaudited consolidated balance sheet of the Parent and its Subsidiaries as of the last day of the tenth fiscal month of fiscal year 2003, and the related statements of income and cash flows for the ten-month period then ended, and (iv) the unaudited consolidated balance sheet of the BGS Business as of the last day of each of the third fiscal quarter and tenth fiscal month of fiscal year 2003, and the related statement of income for the periods then ended, furnished to the Borrower by OrthoLogic. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustmentsadjustments and, in the case of the BGS Business financial statements, on the assumption that the BGS Business was a separate business entity reportable in accordance with GAAP) and present fairly in all material respects the financial condition of the Borrower Parent and its Subsidiaries (on a consolidated basis basis) or the BGS Business, as the case may be, as of the respective dates thereof and the consolidated results of operations of the Borrower Parent and its Subsidiaries (on a consolidated basis) or the BGS Business, as the case may be, for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of Parent and its Subsidiaries of any nature whatsoever or (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of extent being assumed by the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected Borrower in the notes thereto and subject, with respect to BGS Acquisition) the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations BGS Business of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, that are required in accordance with Statutory Accounting Principles, would have been required GAAP to have been disclosed or provided for be reflected in such Historical Statutory Statementsfinancial statements and that are not so reflected.
(b) The Pro Forma Balance Sheet gives pro forma effect to the consummation of the BGS Acquisition, the repayment of the Existing Senior Bank Facilities, the initial extensions of credit made under this Agreement, and the payment of transaction fees and expenses related to the foregoing, all as if such events had occurred on the date as of which the Pro Forma Balance Sheet is prepared. All books The Pro Forma Balance Sheet has been prepared in accordance with the requirements of account of each Insurance Subsidiary fully Regulation S-X under the Exchange Act, is based on stated assumptions made in good faith and having a reasonable basis set forth therein, and presents fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each respects the consolidated financial condition of the Borrower Parent and its Subsidiaries, Subsidiaries on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of the transactions described above.
(c) The Parent has prepared, and has heretofore furnished to the Administrative Agent a copy of, projected consolidated balance sheets and statements of income and cash flows of the Parent and its Subsidiaries (consisting of balance sheets and statements of income and cash flows prepared by the Parent on an annual basis) through the end of fiscal year 2009, giving effect to the consummation of the BGS Acquisition, the repayment of the Existing Senior Bank Facilities, the initial extensions of credit made under this Agreement, and the payment of transaction fees and expenses related to the foregoing (the “Projections”). In the good faith opinion of management of the Parent, the assumptions used in the preparation of the Projections were fair, complete and reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The Projections have been prepared in good faith by the executive and financial personnel of the Parent, are complete and represent a reasonable estimate of the future performance and financial condition of the Parent and its Subsidiaries, subject to the uncertainties and approximations inherent in any projections.
(d) After giving effect to the consummation of the BGS Acquisition and the transactions contemplated hereby, the Borrower and the Credit Parties taken as a whole (i) will have capital sufficient to carry on its their businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, which, together with anticipated cash flows, are (Ay) not less than the amount required to pay the probable liability on its their existing debts as they become absolute and matured and (Bz) greater than the total amount of its their liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and maturedmatured in their ordinary course), and (iii) will do not intend to, and will do not believe that it they will, incur debts or liabilities beyond its their ability to pay such debts and liabilities as they maturemature in their ordinary course.
Appears in 1 contract
Financial Matters. (a) The Borrower Platinum Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Platinum Holdings and its Subsidiaries as of December 31, 19982004, 1997, 2003 and 1996, 2002 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years or period then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersthereon, and (ii) the unaudited consolidated balance sheet of the Borrower Platinum Holdings and its Subsidiaries as of June 30, 19992005, and the related statements of income, stockholders' ’ equity and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles accounting principles generally accepted in the United States of America (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles such accounting principles and to normal year-year end audit adjustments) and present fairly fairly, in all material respects, the financial condition position of the Borrower Platinum Holdings and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedindicated. Except as fully reflected for liabilities and obligations disclosed or provided for in the most recent financial statements referred to above and the notes thereto or the most recent financial statements and the notes thereto delivered pursuant to Section 6.1, as of the date of such financial statements, none of the Credit Parties had any material liability or obligation that, in accordance with GAAP, would have been required to have been disclosed or provided for in such financial statements or the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Platinum Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Material Insurance Subsidiaries Subsidiary as of December 31, 1998, 1997, 1996 2004 and 1995, 2003 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statement of Platinum US as of June 30, 2005, and for the six-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-year end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Material Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Material Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Platinum Underwriters Holdings LTD)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries (including any Excluded Subsidiaries) as of December 31, 19982000, 1997, 2001 and 19962002, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers▇▇▇▇▇ & Young LLP thereon, and (ii) the unaudited draft audited consolidated balance sheet of the Borrower and its Subsidiaries (including any Excluded Subsidiaries) as of June 30December 31, 19992003, and the related statements of income, cash flows and stockholders' equity and cash flows for the ninetwelve month period then ended (the "Draft 2003 Audit") and (iii) the company-prepared consolidated balance sheets of the Borrower and its Subsidiaries (including Excluded Subsidiaries) for the two-month period then endedended February 29, 2004 (the "Two-Month Stub"). Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) GAAP and present fairly the financial condition of the Borrower and its Subsidiaries (including any Excluded Subsidiaries) on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretothereto or as disclosed on SCHEDULE 8,11, there are no material liabilities or obligations with respect to of the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The unaudited pro forma balance sheet of the Borrower as of February 29, 2004, a copy of which has heretofore furnished been delivered to the Lender copies Administrative Agent, gives pro forma effect to the funding of the Annual Statements of each Term Loan B and the consummation of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995Dividend Payment, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and. subject to stated assumptions made in good faith and having a reasonable basis set forth therein, were in compliance with applicable Requirements of Law when filed and present presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) The Consolidated balance sheet of WHX and its Consolidated Subsidiaries as at December 31, 1998, and the audited consolidated related Consolidated statements of income, retained earnings and cash flow of WHX and its Subsidiaries for the fiscal year then ended and (ii) the Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 1998, and the related Consolidated statements of income, retained earnings and cash flow of the Borrower and its Subsidiaries as of December 31for the fiscal year then ended, 1998in each case certified by PricewaterhouseCoopers, 1997LLP, and 1996the Consolidated balance sheet of the Loan Party Consolidated Group as at February 28, 1999, and the related Consolidated statements of income, stockholders' equity retained earnings and cash flows flow of the Loan Party Consolidated Group for the fiscal years two months then ended, together duly certified by the chief financial officer of Holdings, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of said balance sheets as at February 28, 1999, and said statements of income and cash flow for the two months then ended, to year-end audit adjustments, the Consolidated financial condition of such Person and its Subsidiaries as at such dates and the Consolidated results of the operations of such Person and its Subsidiaries for the period ended on such date, all in conformity with GAAP.
(b) Since December 31, 1998 and through the Effective Date, there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect.
(c) None of the Loan Parties or any of its Subsidiaries had at December 31, 1998 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment that is required by GAAP to be included in a balance sheet which is not reflected in the balance sheet referred to in subsection (a) above or in the notes thereto (other than in connection with the opinion Receivables Securitization).
(d) As of KPMG Peat Marwick thereon or PricewaterhouseCoopersthe Effective Date, each Loan Party is, and each Loan Party and its Subsidiaries are, on a consolidated basis, Solvent.
(iie) the The unaudited pro forma consolidated balance sheet of the Borrower and its Subsidiaries Consolidated Subsidiaries, a copy of which has been delivered to each Lender Party, has been prepared as of June 30January 1, 19991999 and reflects as of such date, and on a pro forma basis, the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the projected Consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedSubsidiaries. Except as fully reflected in the most recent Such pro forma financial statements referred to above (including any related schedules and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesnotes) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected GAAP on the basis of the statements and assumptions set forth in the respective notes thereto thereto. The Projections and subject, with respect assumptions expressed therein were reasonably based on the information available to the Quarterly StatementsBorrower at the time so furnished and on the Effective Date, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reservesthe World Steel Dynamics Outlook Monitor Report for February 1999, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, titled Global Pricing Forecast. The Lender Parties hereby acknowledge as of reasonable the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for economic forecast contained in such Historical Statutory Statements. All books Industry Review and the Loan Party Consolidated Group's reliance thereon and that such Projections are subject to significant uncertainties and contingencies, many of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, which are in its possession and are true, correct and complete in all material respects.
(c) Each of beyond the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured)Borrower's control, and (iii) that no assurance can be given that the Projections will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturebe realized.
Appears in 1 contract
Sources: Credit Agreement (WHX Corp)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30----------------- December 31, 19991995, and the related statements statement of income, stockholders' equity retained earnings and cash flows flow of the Borrower for the nine-month period then ended. Except from February 7, 1995 (inception) to December 31, 1995, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, and the combined statements of assets, liabilities and net investment and advances of the Initial Hotels and the Approved Hotel Facilities that are Courtyard by Marriott hotels as set forth in Schedule 4.11(a) attached heretoof December 30, such financial 1994 and as of December 29, 1995, and the related combined statements of revenues and expenses excluding income taxes for the fiscal year ended December 29, 1995, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, copies of which have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect furnished to the unaudited financial statementsLender, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and fairly present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis the combined assets, liabilities and net investment and advances of the Initial Hotels and such Approved Hotel Facilities as of the respective such dates thereof and the consolidated results of the operations of the Borrower and the revenues and expenses excluding income taxes, and cash flows of the Initial Hotels and such Approved Hotel Facilities for the period ended on such dates, all in conformity with GAAP.
(b) Since December 31, 1995, there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries had at December 31, 1995 any material obligation, contingent liability or liability for the respective periods then ended. Except as fully taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the most recent financial statements balance sheet at such date referred to in subsection (a) above and or in the notes thereto.
(d) The unaudited pro forma balance sheets of the Borrower and in respect of the Initial Hotels (the "Pro Forma Balance Sheets"), there are no material liabilities or obligations copies of which have been delivered to the Lender, have been prepared with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly StatementsInitial Hotels, to as of December 29, 1995, and reflect as of such dates, the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the pro forma financial condition of the respective Insurance Subsidiaries covered thereby as Borrower and of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsInitial Hotels.
(ce) Each of The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hospitality Properties Trust)
Financial Matters. (a) The Borrower has heretofore furnished to Administrative Agent and the Lender copies of Lenders shall have received:
(i) audited financial statements of the Borrower for the three most recent fiscal years of the Borrower ended at least 90 days prior to the Effective Date (the “Borrower Audited Financial Statements”);
(ii) audited financial statements of HealthFusion for the two most recent fiscal years of HealthFusion ended at least 90 days prior to the Effective Date (the “HealthFusion Audited Financial Statements”);
(iii) unaudited interim consolidated financial statements of the Borrower and of HealthFusion for each quarterly period ended after the latest fiscal year referred to in clause (i) or clause (ii) above, as applicable, and ended at least 60 days prior to the Effective Date (such unaudited financial statement of the Borrower being referred to as the “Borrower Unaudited Financial Statements” and such unaudited financial statement of HealthFusion being referred to as the “HealthFusion Unaudited Financial Statements”);
(iv) annual management prepared financial projections that are reasonably acceptable to the Lead Arrangers (including balance sheets of sheets, income statements and cash flow statements) for the Borrower and its Subsidiaries as for the five-year period ending (and including) fiscal year 2020 of December 31, 1998, 1997, and 1996, the Borrower. The Administrative Agent and the related statements of income, stockholders' equity and cash flows for Lead Arrangers acknowledge that the fiscal years then ended, together with management prepared financial projections delivered prior to the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and date hereof are acceptable; and
(iiv) the unaudited a pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, the date of the most recent consolidated balance sheet delivered pursuant to clause (i) or (ii) above and the related statements a pro forma statement of income, stockholders' equity and cash flows operations for the ninemost recent 12-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, ending on the last day of such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) thatperiod, in accordance with Statutory Accounting Principles, would have been required each case adjusted to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving give effect to the consummation of the transactions Transactions and the financings contemplated herebyhereby as if such transactions, (i) will have capital sufficient with respect to carry the pro forma balance sheet, had occurred on its businesses as conducted and as proposed such date or with respect to be conductedthe pro forma statements of operations, (ii) will have assets with a fair saleable value, determined had occurred on a going concern basis, (A) not less than the amount required to pay first day of the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured)most recently completed fiscal year, and (iii) will not intend to, consistent in all material respects with the forecasts previously provided to the Administrative Agent and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturethe Lead Arrangers.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the Borrower and its Subsidiaries as of December ----------------- March 31, 1998, 1997, and 19961995, and the related statements statement of income, stockholders' equity retained earnings and cash flow of the Borrower for the period from February 7, 1995 (inception) to March 31, 1995, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, and the combined statements of assets, liabilities and net investment and advances of the Initial Hotels as of December 30, 1994, and the related combined statements of revenues and expenses excluding income taxes, and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June year ended December 30, 19991994, and the related statements certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, copies of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements which have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect furnished to the unaudited financial statementsLender, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and fairly present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis the combined assets, liabilities and net investment and advances of the Initial Hotels as of the respective such dates thereof and the consolidated results of the operations of the Borrower and the revenues and expenses excluding income taxes, and cash flows of the Initial Hotels for the period ended on such dates, all in conformity with GAAP.
(b) Since March 31, 1995, there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries had at March 31, 1995 any material obligation, contingent liability or liability for the respective periods then ended. Except as fully taxes, long- term leases or unusual forward or long-term commitment which is not reflected in the most recent financial statements balance sheet at such date referred to in subsection (a) above and or in the notes thereto.
(d) The unaudited pro forma balance sheets of the Borrower and in respect of the Initial Hotels (the "Pro Forma Balance Sheets"), there are no material liabilities or obligations copies of which have been delivered to the Lender, have been prepared with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December March 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly StatementsInitial Hotels, to as of March 24, 1995, and reflect as of such dates, the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the pro forma financial condition of the respective Insurance Subsidiaries covered thereby as Borrower and of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsInitial Hotels.
(ce) Each of The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hospitality Properties Trust)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersPriceWaterhouseCoopers LLP thereon, and (ii) the unaudited consolidated balance sheet sheets of the Borrower and its Subsidiaries as of March 31, 1999 and June 30, 1999, and the related statements of income, cash flows and stockholders' equity and cash flows for the ninethree- and six-month period periods then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to SECTION 5.1 of the Old Credit Agreement or this Agreement, or (z) any Form 8-K filed by the Borrower with the Securities and Exchange Commission and previously delivered by the Borrower to the Lenders, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) The Each of the unaudited pro forma balance sheets of the Borrower and PXRE Group as of June 30, 1999, a copy of which has heretofore furnished been delivered to the Lender copies Lenders, gives pro forma effect to the consummation of the Annual Statements of each of Reorganization, the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995Bermuda Reinsurance Agreements, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheets"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have Each Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof Borrower and the results of operationsPXRE Group, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (includingrespectively, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsthe transactions described above.
(c) Each The Borrower has prepared, and has heretofore furnished to the Lenders a copy of, annual projected balance sheets and statements of income and cash flows of each of the Borrower and PXRE Group giving effect to the Reorganization, the Bermuda Reinsurance Agreements, and the payment of transaction fees and expenses related to the foregoing (the "Projections") for the period beginning with the year ended December 31, 1999 and continuing through December 31, 2005. In the opinion of management of PXRE Group and the Borrower, the assumptions used in the preparation of the Projections were fair, complete and reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The Projections have been prepared in good faith by the executive and financial personnel of PXRE Group and the Borrower, are complete and represent a reasonable estimate of the future performance and financial condition of PXRE Group and the Borrower, respectively, subject to the uncertainties and approximations inherent in any projections and the business of PXRE Group and Borrowers.
(d) Each of PXRE Group and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
(e) The Borrower has heretofore furnished to the Agent copies of (i) the Annual Statements of each of its Insurance Subsidiaries (other than PXRE Ltd.) as of December 31, 1998, 1997 and 1996, and for the fiscal years then ended, (ii) the Quarterly Statements of each of its Insurance Subsidiaries (other than PXRE Ltd.) as of the end of the first two fiscal quarters of 1999, and for the end of the fiscal quarters then ended, each as filed with the relevant Insurance Regulatory Authority, and (iii) the annual report with respect to PXRE Ltd. filed with Lloyd's (collectively, the "Historical Statutory Statements"). The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation
Appears in 1 contract
Sources: Credit Agreement (Pxre Group LTD)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersPriceWaterhouseCoopers LLP thereon, and (ii) the unaudited consolidated balance sheet sheets of the Borrower and its Subsidiaries as of March 31, 1999 and June 30, 1999, and the related statements of income, cash flows and stockholders' equity and cash flows for the ninethree- and six-month period periods then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1 of the Old Credit Agreement or this Agreement, or (z) any Form 8-K filed by the Borrower with the Securities and Exchange Commission and previously delivered by the Borrower to the Lenders, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) Each of the unaudited pro forma balance sheets of the Borrower and PXRE Group as of June 30, 1999, a copy of which has heretofore been delivered to the Lenders, gives pro forma effect to the consummation of the Reorganization, the Bermuda Reinsurance Agreements, and the payment of transaction fees and expenses related to the foregoing, all as if such events had occurred on such date (the "Pro Forma Balance Sheets"). Each Pro Forma Balance Sheet has been prepared in accordance with GAAP (subject to the absence of footnotes required by GAAP and subject to normal year-end adjustments) and, subject to stated assumptions made in good faith and having a reasonable basis set forth therein, presents fairly the financial condition of the Borrower and PXRE Group, respectively, on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of the transactions described above.
(c) The Borrower has prepared, and has heretofore furnished to the Lenders a copy of, annual projected balance sheets and statements of income and cash flows of each of the Borrower and PXRE Group giving effect to the Reorganization, the Bermuda Reinsurance Agreements, and the payment of transaction fees and expenses related to the foregoing (the "Projections") for the period beginning with the year ended December 31, 1999 and continuing through December 31, 2005. In the opinion of management of PXRE Group and the Borrower, the assumptions used in the preparation of the Projections were fair, complete and reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The Projections have been prepared in good faith by the executive and financial personnel of PXRE Group and the Borrower, are complete and represent a reasonable estimate of the future performance and financial condition of PXRE Group and the Borrower, respectively, subject to the uncertainties and approximations inherent in any projections and the business of PXRE Group and Borrowers.
(d) Each of PXRE Group and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) has assets with a fair saleable value, determined on a going concern basis, (y) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (z) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
(e) The Borrower has heretofore furnished to the Lender Agent copies of (i) the Annual Statements of each of the its Insurance Subsidiaries (other than PXRE Ltd.) as of December 31, 1998, 1997, 1996 1997 and 19951996, and for the fiscal years then ended, (ii) the Quarterly Statements of each of its Insurance Subsidiaries (other than PXRE Ltd.) as of the end of the first two fiscal quarters of 1999, and for the end of the fiscal quarters then ended, each as filed with the relevant Insurance Regulatory Authority Authority, and (iii) the annual report with respect to PXRE Ltd. filed with Lloyd's (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP where required (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP (or, with respect to PXRE Ltd., the requirements of Lloyd's), would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Pxre Group LTD)
Financial Matters. (a) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Everest Group and its Subsidiaries as of December 31, 19982003, 1997, 2002 and 1996, 2001 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersPricewaterhouseCoopers thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Everest Group and its Subsidiaries as of June September 30, 19992004, and the related statements of income, stockholders' ’ equity and cash flows for the nine-nine month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly the financial condition of the Borrower Everest Group and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Everest Group and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower Everest Group or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Insurance Subsidiaries Subsidiary as of December 31, 19982003, 1997, 1996 2002 and 1995, 2001 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statements of each Insurance Subsidiary as of September 30, 2004, and for the nine month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-year end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the US Borrower and its Subsidiaries as of at December 31, 1998, 1997, and 19962000, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the US Borrower and its Subsidiaries for the respective periods fiscal year then ended. Except , audited by PricewaterhouseCoopers, L.L.P. and the consolidated balance sheets of the US Borrower and its Subsidiaries as fully reflected at December 31, 2000, and the related consolidated statements of income, retained earnings and cash flows of the US Borrower and its Subsidiaries for the twelve months then ended, certified by the chief financial officer or treasurer of the US Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the most recent case of said balance sheets as at December 31, 2000, and said statements of income, retained earnings and cash flows for the twelve months then ended, to year-end audit adjustments, the consolidated financial statements referred to above condition of the US Borrower and its Subsidiaries as at such dates and the notes thereto, there are no material liabilities or obligations with respect to consolidated results of the operations of the US Borrower or any of and its Subsidiaries of any nature whatsoever (whether absolutefor the period ended on such dates, contingent or otherwise and whether or not due)all in conformity with GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 19982000, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each of Neither the US Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount nor any of its liabilities Subsidiaries had at December 31, 2000 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in subsection (including identified contingent liabilities, valued at a) above or in the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturenotes thereto.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the Borrower and its Subsidiaries ----------------- Loan Parties as of at December 31, 1998, 1997, and 1996, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows of the Loan Parties for the fiscal year then ended, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the consolidated and consolidating balance sheets of the Loan Parties as at September 30, 1997 and the related consolidated statements of income, retained earnings and cash flows of the Loan Parties for the nine (9) months then ended, certified by the chief financial officer of each of the Loan Parties copies of which have been furnished to the Bank, fairly present, subject, in the case of said balance sheets as at September 30, 1997, and said statements of income, retained earnings and cash flows for the fiscal years nine (9) months then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis Loan Parties as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries Loan Parties for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998Since July 1, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has at the Closing Date any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the pro forma balance sheet at such date referred to in subsection (d) below or in the notes thereto.
(d) The unaudited pro forma consolidated balance sheet of each of the Loan Parties (the "Pro Forma Balance Sheet"), a copy of which has been delivered to each Lender, has been prepared as of the Closing Date, reflects as of such date, on a pro forma basis, the consolidated financial condition of each of the Loan Parties, and the Projections and assumptions expressed therein were reasonably based on the information available to the Acquisition and the Borrower at the time so furnished.
(e) Each of the Borrower Loan Parties is, and its Subsidiarieson a consolidated basis the Loan Parties are, before and after giving effect to the consummation of transaction contemplated by the transactions contemplated herebyAcquisition Agreement and this Agreement, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the ------------------ Borrower and its Subsidiaries as at December 31, 1995, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries as of December 31for the Fiscal Year then ended, 1998, 1997, and 1996certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June at September 30, 1999, 1996 and the related consolidated statements of income, stockholders' equity retained earnings and cash flows flow of the Borrower and its Subsidiaries for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such certified by the chief financial statements officer of the Borrower, copies of which have been prepared in accordance with Generally Accepted Accounting Principles (furnished to the Agents and the Arranger, fairly present, subject, with respect to in the unaudited financial statementscase of said balance sheet as at September 30, 1996, and said statement of income, retained earnings and cash flow for the period then ended, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 1998, 1997, 1996 and 1995, there has been no Material Adverse Change and no event or development that has had a reasonable likelihood of having a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries had at December 31, 1995 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected on the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority balance sheet at such date referred to in subsection (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(ba) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected above or in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, which would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books a reasonable likelihood of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshaving a Material Adverse Effect.
(cd) Each of On the Closing Date, the Borrower, and the Borrower and its Restricted Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern consolidated basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureare Solvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 19962002, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19992003, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month three (3)-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretothereto as of the Closing Date, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has prepared, and has heretofore furnished to the Lender copies Agent a copy of, annual projected balance sheets and statements of income and cash flows of the Annual Statements of each of Borrower for the Insurance Subsidiaries as of three-year period beginning with the year ending December 31, 19982003, 1997giving effect to the initial extensions of credit made under this Agreement, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments assumption of the Existing Letters of Credit under this Agreement, and the valuation thereofpayment of transaction fees and expenses related to the foregoing (the “Projections”). In the opinion of management of the Borrower, reservesthe assumptions used in the preparation of the Projections were fair, policy complete and contract claims reasonable when made and statutory liabilities) continue to be fair, complete and reasonable as of the Closing Date. The Projections have been prepared in accordance with Statutory Accounting Principles (except good faith by the executive and financial personnel of the Borrower, are complete as may be reflected in of the notes thereto Closing Date and subject, with respect to represent as of the Quarterly Statements, to Closing Date a reasonable estimate of the absence of notes required by Statutory Accounting Principles future performance and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of Borrower, subject to the respective dates thereof uncertainties and the results of operations, changes approximations inherent in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsprojections.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Financial Matters. (a) The consolidated balance sheet of the Borrower has heretofore furnished to and its Subsidiaries as at December 31, 1998, and the Lender copies related consolidated statements of (i) income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, audited by PricewaterhouseCoopers LLP, and the consolidated balance sheets of the Borrower and its Subsidiaries as of at December 31, 1998, 1997, and 1996, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the twelve months then ended, certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as of June 30at December 31, 19991998, and the related said statements of income, stockholders' equity retained earnings and cash flows for the nine-month period twelve months then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 1998, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each Neither the Borrower nor any of its Subsidiaries had at December 31, 1998 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in subsection (a) above or in the notes thereto.
(d) The Projections that have been delivered to each Lender, were prepared on the basis of the assumptions expressed therein, which assumptions the Borrower believed to be reasonable based on the information available to the Borrower at the time so furnished and on the Closing Date.
(e) The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore Consolidated balance sheet of WHX and its Consolidated Subsidiaries as at December 31, 1994, and the related Consolidated statements of income, retained earnings and cash flow of WHX and its Subsidiaries for the fiscal year then ended, certified by Price Waterhouse, and the Consolidated balance sheet of the Loan Party Consolidated Group as at September 30, 1995, and the related Consolidated statements of income, retained earnings and cash flow of the Loan Party Consolidated Group for the nine months then ended, duly certified by the chief financial officer of Holdings, copies of which have been furnished to each Lender Party, fairly present, subject, in the Lender copies case of (i) the audited consolidated said balance sheets as at September 30, 1995, and said statements of income and cash flow for the Borrower nine months then ended, to year-end audit adjustments, the Consolidated financial condition of such Person and its Subsidiaries as at such dates and the Consolidated results of the operations of such Person and its Subsidiaries for the period ended on such date, all in conformity with GAAP.
(b) Since December 31, 19981994 and through the Effective Date, 1997there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect.
(c) None of the Loan Parties or any of its Subsidiaries had at December 31, 1994 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment that is required by GAAP to be included in a balance sheet which is not reflected in the balance sheet referred to in subsection (a) above or in the notes thereto (other than in connection with the Receivables Securitization).
(d) As of the Effective Date, each Loan Party is, and 1996each Loan Party and its Subsidiaries are, and the related statements of incomeon a consolidated basis, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and Solvent.
(iie) the The unaudited pro forma consolidated balance sheet of the Borrower and its Subsidiaries Consolidated Subsidiaries, a copy of which has been delivered to each Lender Party, has been prepared as of June 30December 31, 19991995 and reflects as of such date, and on a pro forma basis, the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the projected Consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedSubsidiaries. Except as fully reflected in the most recent Such pro forma financial statements referred to above (including any related schedules and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesnotes) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected GAAP on the basis of the statements and assumptions set forth in the respective notes thereto thereto. The Projections and subject, with respect assumptions expressed therein were reasonably based on the information available to the Quarterly StatementsBorrower at the time so furnished and on the Effective Date, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, the DRI/McGraw Hill Steel Industry Review 3rd Quarter 1995. The Lender Parties hereby acknowledge as of reasonable the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for economic forecast contained in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully Industry Review and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsthe Loan Party Consolidated Group's reliance thereon.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19982002, 19972001, and 1996, 2000 and the related statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 2002, 2001 and 2000, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersKPMG, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992003, and the related statements of income, stockholders' equity income and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP, and with respect to the financial statements described in clauses (i) and (ii) above, to normal year-end audit adjustments) and fairly present fairly in accordance with GAAP (x) the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof thereof, and (y) the consolidated results of operations of the Borrower and its Subsidiaries Subsidiaries, on a consolidated basis, for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that would in accordance with GAAP have been required to be disclosed or provided for in such financial statements.
(b) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the Annual Statements of each of the its Material Insurance Subsidiaries as of December 31, 19982002, 1997, 1996 2001 and 19952000, and for the fiscal years then ended, and (ii) the Quarterly Statements of each of its Material Insurance Subsidiaries as of June 30, 2003, and for the six-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements")Authority. Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements Such financial statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Applicable Law when filed and fairly present fairly in accordance with SAP the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements such financial statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statementsfinancial statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statementsfinancial statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated herebyThe Borrower, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19981991, 19971992, and 19961993, and the related statements of income, stockholders' equity income and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 19991994, and the related statements of income, stockholders' equity income and cash flows for the nine-month period then endedended (collectively, the "Historical Financial Statements"). Except as set forth in Schedule 4.11(a) attached hereto, such financial statements The Historical Financial Statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statementsHistorical Financial Statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition position of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above Historical Financial Statements and the notes thereto, as of the Closing Date there are will be no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due). Since the date of the most recent audited Historical Financial Statements, there has been no Material Adverse Change, and, to the knowledge of the Borrower, no Material Adverse Change is threatened or reasonably likely to occur (it being understood that the other transactions contemplated by the Loan Documents do not, as such, constitute a Material Adverse Change). The Borrower has not directly or indirectly declared, ordered, paid, made or set apart any amounts or property for any dividend, share acquisition or other distribution, or agreed to do so.
(b) The Borrower has prepared, and has heretofore furnished to the Lender copies of, annual projected statements of income of RECO and Lexington Management for the four-year period beginning January 1, 1994, giving effect to the Transactions (the "Projections"). In the opinion of the Borrower's management, the assumptions used in preparation of the Projections were reasonable when made as of the Closing Date and continue to be reasonable. The Projections have been prepared in good faith by the executive and financial personnel of the Borrower in light of the historical financial performance of the Borrower and the financial and operating condition of the Borrower at the time prepared and represent a reasonable estimate of the future performance and financial condition of the Borrower and its Subsidiaries, subject to the uncertainties and approximations inherent in any projections.
(c) The Borrower has heretofore furnished to the Lender copies of (i) the Annual Statements Statement of each of the Insurance Subsidiaries RECO as of December 31, 1998, 1997, 1996 and 19951993, and for the fiscal years year then ended, each as filed with the relevant Insurance Regulatory Authority Department, and (ii) the Quarterly Statement of RECO as of March 31, 1994, June 30, 1994, and September 30, 1994, and for the three-month, six-month and nine-month periods then ended, each as filed with the relevant Department (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesStatutory Liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-year- end audit adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition position of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilitiesStatutory Liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(cd) Each The investments of each of the Borrower Insurance Subsidiaries reflected in its most recently filed Annual Statement and Quarterly Statement comply in all material respects with all applicable requirements of the relevant Department and of any other Governmental Authority having jurisdiction over the investment of its funds. The amounts shown in the most recently filed Annual Statement and Quarterly Statement for each of the Insurance Subsidiaries for reserves, policy and contract claims, agents' balances and uncollected premiums and Statutory Liabilities were computed in accordance with commonly accepted actuarial standards consistently applied, were fairly stated in accordance with sound actuarial principles, were based on actuarial assumptions that were in accordance with or more stringent than those called for in the insurance policies and contracts and in the related reinsurance, co-insurance or similar contracts of such Insurance Subsidiaries, after giving effect to were computed on the consummation basis of assumptions consistent with those of the transactions contemplated herebypreceding fiscal year, (i) will have capital sufficient to carry on and meet the requirements of each relevant Department and of any other Governmental Authority having jurisdiction. Such reserves as established by each Insurance Subsidiary were, in the judgment of the Borrower, adequate as of such date for the payment by such Insurance Subsidiary of all of its businesses as conducted insurance benefits, losses, claims and as proposed to be conductedinvestigative expenses. Marketable securities and short-term investments reflected in each Insurance Subsidiary's most recently filed Annual Statement and Quarterly Statement are valued at cost, (ii) will have assets with a fair saleable amortized cost or market value, determined on a going concern basisas required by applicable Requirements of Law.
(e) The Earned Surplus of RECO as of September 30, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature1994 was $16,015,969.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19982013, 1997, 2012 and 1996, 2011 and the related statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 2013, 2012 and 2011, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersKPMG, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19992014, and the related statements of income, stockholders' equity income and cash flows for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and fairly present fairly in accordance with GAAP (x) the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof thereof, and (y) the consolidated results of operations of the Borrower and its Subsidiaries Subsidiaries, on a consolidated basis, for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that would in accordance with GAAP have been required to be disclosed or provided for in such financial statements.
(b) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the Annual Statements of each of the its Material Insurance Subsidiaries as of December 31, 19982013 and for the fiscal year then ended, 1997and (ii) the Quarterly Statements of each of its Material Insurance Subsidiaries as of March 31, 1996 and 19952014, and for the fiscal years three-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements")Authority. Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements Such financial statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Applicable Law when filed and fairly present fairly in accordance with SAP the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements such financial statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statementsfinancial statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsfinancial statements.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, Such Credit Party (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Financial Matters. (a) The Borrower has heretofore furnished to Schedule 3.5(a) of the Lender copies of Seller Disclosure Schedule sets forth (i) the audited a consolidated unaudited balance sheets sheet of the Borrower L&W and its Subsidiaries dated as of December 31June 30, 19982016 (such balance sheet, 1997including the applicable notes, principles and 1996other descriptions referenced on such Schedule 3.5(a), the “Most Recent Balance Sheet”) and the related statements consolidated unaudited statement of income, stockholders' equity and cash flows operations for the fiscal years then six months then-ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated audited balance sheet sheets of the Borrower L&W and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries dated as of December 31, 19982015 and as of December 31, 19972014 and the related consolidated audited statements of operations, 1996 cash flows and 1995changes in net parent investment for each of the three years in the period ended December 31, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority 2015 (collectively, the "Historical Statutory documents referred to in the immediately preceding clauses (i) and (ii), the “Business Financial Statements"”). Except as set forth The Business was not conducted on a stand-alone basis during the periods indicated in Schedule 4.11(b) attached heretothe Business Financial Statements, and the Historical Statutory Business Financial Statements were prepared solely for the purpose of this Agreement. The Business Financial Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesA) have been prepared in accordance with Statutory Accounting Principles (GAAP, except as may be reflected in that the notes thereto and subjectunaudited statements for the six-month period ended June 30, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and 2016 are subject to normal year-end adjustments)adjustments and include all adjustments which are, were in compliance with applicable Requirements the opinion of Law when filed management, necessary to a fair statement of the results for the interim period presented, and (B) do not contain all of the footnotes or other presentation items otherwise required by GAAP. The Business Financial Statements present fairly fairly, in all material respects, the financial condition position of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof Acquired Companies and the results of operations, changes in capital and surplus their operations and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for flows in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, accordance with GAAP as of the date dates and for the periods indicated; provided, that the Business Financial Statements include allocations of its respective Historical Statutory Statements, any material liabilities or obligations expenses from the Seller which may not be reflective of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, the actual level of costs which would have been required incurred had the Acquired Companies operated as a separate entity apart from the Seller. Since the date of the Most Recent Balance Sheet, there has not been any event that has had, or would reasonably be expected to have been disclosed result in, a Material Adverse Effect.
(b) Except as set forth on Schedule 3.5(b) of the Seller Disclosure Schedules and except as, and to the extent, reflected or provided reserved against in the Business Financial Statements (including the notes thereto), there are no Liabilities related to the Business, except for Liabilities: (i) incurred in such Historical Statutory Statements. All books connection with the Contemplated Transactions (including all Liabilities assumed by L&W pursuant to Section 1.2(a)); or (ii) incurred in the Ordinary Course since the date of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsthe Most Recent Balance Sheet.
(c) Each Since the date of the Borrower and its SubsidiariesMost Recent Balance Sheet, after giving effect to neither the consummation Seller nor any member of the transactions contemplated herebySeller Group has caused any of the Acquired Companies to incur, (i) will have capital sufficient assume, guarantee or otherwise become subject to carry on its businesses as conducted any Liability that was not related primarily to and as proposed to be conducted, (ii) will have assets incurred in connection with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay conduct of the probable liability on its existing debts as they become absolute and matured and (B) greater than Business in the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureOrdinary Course.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the Borrower and its Subsidiaries ----------------- Fabral Holdings as of December 31, 1998, 1997, and 1996, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows of Fabral Holdings for the fiscal years year then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCooperscertified by Coopers & ▇▇▇▇▇▇▇, LLP, and (ii) the unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries Euramax as of June 30at December 31, 19991995, and the related consolidated and consolidating statements of income, stockholders' equity retained earnings and cash flows of Euramax for the nine-month period fiscal year then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements certified by Coopers & ▇▇▇▇▇▇▇, LLP, copies of which have been prepared in accordance with Generally Accepted Accounting Principles (subjectfurnished to each Lender, with respect to fairly present the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles consolidated and to normal year-end audit adjustments) and present fairly the consolidating financial condition of the Borrower Fabral Holdings and its consolidated Subsidiaries on a and Euramax and its consolidated basis Subsidiaries, respectively, as of the respective at such dates thereof and the consolidated and consolidating results of the operations of the Borrower Fabral Holdings and its consolidated Subsidiaries and Euramax and its consolidated Subsidiaries, respectively, for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 19981996 in the case of Fabral Holdings and its Subsidiaries and December 31, 19971995 in the case of Euramax and its Subsidiaries, 1996 other than as contemplated by the Fabral Purchase Documents, there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each Neither Fabral Holdings nor any of its Subsidiaries had, other than as contemplated by the Fabral Purchase Documents, at December 31, 1996, and neither Euramax nor any of its Subsidiaries had at December 31, 1995, any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the respective balance sheet at such dates referred to in subsection (a) above or in the notes thereto.
(d) The unaudited pro forma consolidated and consolidating balance sheet of Euramax and its consolidated Subsidiaries, a copy of which has been delivered to each Lender, estimated as of the Borrower Effective Date, reflects as of such date, on a pro forma basis, the consolidated financial condition of Euramax and its Subsidiaries, after giving effect and the Projections and assumptions expressed therein were reasonably based on the information available to Euramax at the consummation of time so furnished and on the transactions contemplated herebyEffective Date.
(e) Each Loan Party is, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basisconsolidated basis each Loan Party and its Subsidiaries are, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2004 and 1996, 2003 and the related statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 2004, 2003 and 2002, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersKPMG, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992005, and the related statements of income, stockholders' equity income and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and fairly present fairly in accordance with GAAP (x) the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof thereof, and (y) the consolidated results of operations of the Borrower and its Subsidiaries Subsidiaries, on a consolidated basis, for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that would in accordance with GAAP have been required to be disclosed or provided for in such financial statements.
(b) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the Annual Statements of each of the its Material Insurance Subsidiaries as of December 31, 19982004 and for the fiscal year then ended, 1997and (ii) the Quarterly Statements of each of its Material Insurance Subsidiaries as of March 31, 1996 and 19952005, and for the fiscal years three-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements")Authority. Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements Such financial statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Applicable Law when filed and fairly present fairly in accordance with SAP the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements such financial statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statementsfinancial statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsfinancial statements.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated herebyThe Borrower, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-year- end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995l995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the Borrower Euramax U.S. and its Subsidiaries as at the end of the Fiscal Year ending December 31, 1998, 1997, and 19962002, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows of Euramax U.S. and its Subsidiaries for the fiscal years Fiscal Year then ended, together certified by Ernst & Young LLP, copies of which have been furnished to each Lender, fairly present the consolidated financial condition of Euramax U.S. and its consolidated Subsidiaries, as at such dates and the consolidated results of the operations of Euramax U.S. and its consolidated Subsidiaries for the period ended on such dates, all in conformity with GAAP.
(b) Since December 31, 2002, there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect, it being understood that making Permitted Stock Payments in accordance with the opinion terms hereof shall be deemed not to constitute a Material Adverse Change.
(c) Neither Euramax U.S. nor any of KPMG Peat Marwick thereon its Subsidiaries had at December 31, 2002, any material obligation, contingent liability or PricewaterhouseCoopersliability for taxes, and long–term leases or unusual forward or long–term commitment which is not reflected in the respective balance sheet at such dates referred to in subsection (iia) above or in the notes thereto.
(d) The unaudited consolidated balance sheet of the Borrower Euramax U.S. and its consolidated Subsidiaries as of June 30the last day of the fiscal month ending immediately before the Effective Date, 1999a copy of which has been delivered to each Lender, reflects as of such date the consolidated financial condition of Euramax U.S. and its Subsidiaries, and the related statements of incomeProjections and assumptions expressed therein, stockholders' equity and cash flows for assuming all activities described therein had been accomplished on the nine-month period then ended. Except as dates set forth in Schedule 4.11(atherein and on the assumptions made therein, were reasonably based on the information available to Euramax U.S. at the time so furnished.
(e) attached heretoEach Loan Party is, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower each Loan Party and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretoare, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)Solvent.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2010 and 19962009, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19992011, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the SEC and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect.
(b) The Borrower, after giving effect to the consummation of the transactions contemplated hereby, (i) has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) has assets with a fair saleable value, determined on a going concern basis, (y) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (z) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
(c) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the its Insurance Subsidiaries as of December 31, 1998, 1997, 1996 2010 and 19952009, and for the fiscal years then ended, as applicable, and (ii) the Quarterly Statements of each of its Insurance Subsidiaries as of the end of the first fiscal quarter of 2011, and for the end of the fiscal quarter then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP where required (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2023 and 19962024, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19992025, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the SEC and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its SubsidiariesBorrower, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (ai) The Borrower Company has heretofore furnished to the Lender holder of Notes copies of (i) the audited consolidated balance sheets of the Borrower Company and its Subsidiaries as of December 31, 1998, 1997, and 19962019, and the related statements of income, stockholders' equity and cash flows and shareholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersE▇▇▇▇ & Young LLP thereon, and (ii) the internal, unaudited consolidated balance sheet of the Borrower Company and its Subsidiaries as of June 30March 31, 19992020, and the related statements of income, stockholders' equity and cash flows and shareholders’ equity for the nine-three (3) month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower Company and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Company and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretothereto as of the date of this Agreement, there are no material liabilities or obligations with respect to the Borrower Company or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(cii) Each of the Borrower Company and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and maturedmatured in their ordinary course), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturemature in their ordinary course.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Old Dominion Freight Line, Inc.)
Financial Matters. (a) The consolidated balance sheet of the Borrower has heretofore furnished to and its Subsidiaries at January 31, 1998 and the Lender copies related consolidated statements of (i) operations, shareholders' equity and cash flows of the audited Borrower and its Subsidiaries for the fiscal year then ended, certified by Deloitte & Touche and the consolidated balance sheets of the Borrower and its Subsidiaries as of December 31at May 2, 1998, 1997, and 1996, and the related consolidated statements of incomeoperations, stockholdersshareholders' equity and cash flows of the Borrower and its Subsidiaries for the thirteen weeks then ended, certified by the chief financial officer of the Borrower copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets at May 2, 1998, and said statements of operations, shareholders' equity and cash flows for the fiscal years thirteen weeks then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December Since January 31, 1998, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each The unaudited pro forma consolidated balance sheet of the Borrower and its Subsidiaries, after giving a copy of which has been delivered to each Lender prior to the date of this Agreement, gives effect to the Stone & Thom▇▇ ▇▇▇uisition, the financing thereof and all fees and expenses payable in connection therewith and reflect as of the date thereof, on a pro forma basis, the consolidated financial condition of the Borrower and its Subsidiaries assuming the consummation of the transactions contemplated herebyStone & Thom▇▇ ▇▇▇uisition and the financing thereof had actually occurred on such date, and the projections and assumptions expressed therein were reasonably based on the information available to the Borrower at the time so furnished and on the Effective Date.
(id) will have capital sufficient to carry on its businesses as conducted The Borrower is, and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basisconsolidated basis the Borrower and its Subsidiaries are, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year of the Borrower ended on September 30, 2000, and as of the last day of the fiscal quarters of the Borrower ended on December 31, 2000, March 31, 2001 and June 30, 19992001, and the related consolidated statements of income, stockholdersshareholders' equity and cash flows of the Borrower and its Subsidiaries for such fiscal year and quarters, with, in the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached heretocase of said fiscal year, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subjectreports thereon by Ernst & Young LLP: are complete, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles accurate and to normal year-end audit adjustments) and fairly present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and for the consolidated results of operations respective periods covered thereby; were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as set forth in the notes thereto; and other than as disclosed in Schedule 4.05(a), show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the dates thereof, including liabilities for taxes, material commitments and long-term leases.
(l) The consolidated balance sheet of IBP and its Subsidiaries as of the last day of the fiscal year of IBP ended on December 30, 2000, and as of the last day of the fiscal quarter of IBP ended on June 30, 2001, and the related consolidated statements of earnings, changes in stockholders' equity and comprehensive income, and of cash flows of IBP and its Subsidiaries for such fiscal year and quarter, with, in the case of said fiscal year, reports thereon by PriceWaterhouseCoopers LLP: are complete, accurate and fairly present the financial condition of IBP and its Subsidiaries as of the respective dates thereof and for the periods then ended. Except covered thereby; were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as fully reflected set forth in the most recent financial statements referred to above and the notes thereto; and other than as disclosed in Schedule 4.05(b), there are no show all material indebtedness and other liabilities, direct or contingent, of IBP and its consolidated Subsidiaries as of the dates thereof, including liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolutefor taxes, contingent or otherwise material commitments and whether or not due)long-term leases.
(bm) The Borrower has heretofore furnished to the Lender copies Lenders its pro forma consolidated balance sheet as of March 31, 2001, prepared giving effect to the Transactions as if the Transactions had occurred on such date and included in the model delivered by the Borrower to the Lenders prior to the date hereof. Such pro forma consolidated balance sheet (i) has been prepared in good faith based on assumptions believed by the Borrower to be reasonable, (ii) is based on the best information available to the Borrower after due inquiry, (iii) accurately reflects all adjustments necessary to give effect to the Transactions and (iv) presents fairly, in all material respects, the pro forma financial position of the Annual Statements of each of the Insurance Borrower and its consolidated Subsidiaries as of December March 31, 19982001, 1997as if the Transactions had occurred on such date.
(n) Since September 30, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject2000, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles Borrower and to normal year-end adjustmentsits Subsidiaries (other than IBP and its Subsidiaries), were in compliance and December 30, 2000, with applicable Requirements respect to IBP and its Subsidiaries, there has been no Material Adverse Effect and no development which has any reasonable likelihood of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshaving a Material Adverse Effect.
(co) Each of The Borrower is, and the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern consolidated basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Financial Matters. (a) The Borrower has heretofore furnished to consolidated balance sheet of CEI and its consolidated Subsidiaries as at December 31, 2002, and the Lender copies related consolidated statements of (i) income, retained earnings and cash flows of CEI and its consolidated Subsidiaries for the audited fiscal year then ended, certified by KPMG LLP, and the consolidated balance sheets of the Borrower CEI and its consolidated Subsidiaries as of December 31at June 30, 1998, 1997, and 19962003, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows of CEI and its consolidated Subsidiaries for the six months then ended, certified by the chief financial officer of CEI, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as at June 30, 2003, and said statements of income, retained earnings and cash flows for the fiscal years six months then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower CEI and its consolidated Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower CEI and its consolidated Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 19982002, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared no events or developments that in accordance with Statutory Accounting Principles (the aggregate have had a Material Adverse Effect, except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustmentsdescribed on Schedule 4.04(b), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each Neither CEI nor any of its consolidated Subsidiaries had at June 30, 2003 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in subsection (a) above or in the notes thereto.
(d) The unaudited pro forma consolidated projections of CEI and its consolidated Subsidiaries, a copy of which has been delivered to the Administrative Agent, has been prepared as of June 10, 2003, reflects as of such date, on a pro forma basis, the consolidated cash flows of CEI and its consolidated Subsidiaries, and the projections and assumptions expressed therein were reasonably based on the information available to CEI at the time so furnished.
(e) As of the Borrower Closing Date (and its Subsidiaries, after giving effect to the consummation making of Loans on the Closing Date) CEI, the Borrower and each member of the transactions contemplated hereby, (i) will have capital sufficient to carry CEI Group listed on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.Schedule 4.04
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1998 and 1997, and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersArth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 1999, and the related statements of income, cash flows and stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) ), are true and correct in all material respects, and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretothereto or on SCHEDULE 5.11, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries Material Subsidiary of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies unaudited pro forma balance sheet of the Annual Statements of each of the Insurance Borrower and its Subsidiaries as of December 31the Closing Date, 1998a copy of which has heretofore been delivered to the Agent, 1997gives pro forma effect to the Transactions, 1996 and 1995the initial extensions of credit made under this Agreement, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect subject to the Quarterly Statements, to (i) the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)adjustments and (ii) the consolidation of its Subsidiaries) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, 61 68 presents fairly the financial condition of the respective Insurance Borrower and its Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureTransactions.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished ----------------- to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 1996, and 19961995, and the related statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 1997, 1996 and 1995, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 19991998, and the related statements of income, stockholders' equity income and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP and, if applicable, Regulation S-X under the Exchange Act (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies unaudited pro forma balance sheet of the Annual Statements of each of the Insurance Subsidiaries Borrower as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have a copy of which has heretofore been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect delivered to the Quarterly StatementsAdministrative Agent, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving gives pro forma effect to the consummation of the transactions contemplated herebyinitial extensions of credit made under this Agreement, (i) will have capital sufficient the WOKR Acquisition and the payment of transaction fees and expenses related to carry on its businesses the foregoing, all as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay if such debts and liabilities as they mature.events had occurred
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19982010, 1997, 2009 and 1996, 2008 and the related statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 2010, 2009 and 2008, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersKPMG, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992011, and the related statements of income, stockholders' equity income and cash flows for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and fairly present fairly in accordance with GAAP (x) the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof thereof, and (y) the consolidated results of operations of the Borrower and its Subsidiaries Subsidiaries, on a consolidated basis, for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that would in accordance with GAAP have been required to be disclosed or provided for in such financial statements.
(b) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the Annual Statements of each of the its Material Insurance Subsidiaries as of December 31, 19982010 and for the fiscal year then ended, 1997and (ii) the Quarterly Statements of each of its Material Insurance Subsidiaries as of June 30, 1996 and 19952011, and for the fiscal years three-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements")Authority. Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements Such financial statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Applicable Law when filed and fairly present fairly in accordance with SAP the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements such financial statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statementsfinancial statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsfinancial statements.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated herebyThe Borrower, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30at December 31, 19991994, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows of the Borrower and its Subsidiaries for the nine-month period fiscal year then ended. Except , certified by Ernst & Young LLP, and the consolidated balance sheet of the Borrower and its Subsidiaries as set forth in Schedule 4.11(a) attached heretoat June 30, such 1995, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the three months then ended, certified by the chief financial statements officer of the Borrower, copies of which have been prepared in accordance with Generally Accepted Accounting Principles (subjectfurnished to each Lender, with respect to fairly present the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished Except as previously disclosed to the Lender copies of Lenders in the Annual Statements of each of Borrower's quarterly reports on Form 10Q filed for the Insurance Subsidiaries as of Fiscal Quarters ended March 31, 1995 and June 30, 1995, since December 31, 19981994, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed no events or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) developments that, in accordance with Statutory Accounting Principlesthe aggregate, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each Neither the Borrower nor any of its Subsidiaries had at December 31, 1994 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in Section 4.5(a) or in the notes thereto.
(d) The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Sources: Credit Agreement (Intergraph Corp)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower Company and its Subsidiaries as of December 31the last day of the fiscal year ended on January 1, 1998, 19972000, and 1996the last day of the fiscal quarter ended July 1, 2000, and the related consolidated statements of income, stockholders' equity income and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower Company and its Subsidiaries for such fiscal year and fiscal quarter (and in the case of such balance sheets and statements for such fiscal year, with reports thereon by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., independent public accountants), copies of which have been delivered to the Agent and each Lender prior to the execution of this Agreement, fairly present the consolidated financial position of the Company and its Subsidiaries as of June 30, 1999the date of said balance sheets and the consolidated results of their operations for the period covered by said statements of income and cash flows, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to GAAP consistently applied in all material respects by the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower Company and its Subsidiaries on a consolidated basis throughout the periods involved, except as set forth in the notes thereto. There are no material liabilities, contingent or otherwise, of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully Company or any Subsidiary not reflected in the most recent financial statements referred to above and consolidated balance sheet as of January 1, 2000 or in the notes thereto, there thereto which are no material liabilities or obligations with respect required to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)be disclosed therein.
(b) The Borrower Since January 1, 2000, there has heretofore furnished been no Material Adverse Effect and no development which is likely to have a Material Adverse Effect, except as reflected in the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as Company’s periodic reports filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments Securities and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect Exchange Commission prior to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsClosing Date.
(c) Each There is no material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitments which is not reflected in the January 1, 2000 consolidated financial statements of the Borrower Company and its Subsidiaries, after giving effect to Subsidiaries or in the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed notes thereto which are required by GAAP to be conducted, (ii) will disclosed therein and no liability reflected in such notes is likely to have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureMaterial Adverse Effect.
Appears in 1 contract
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2012 and 19962011, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992013, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the SEC and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished that, individually or in the aggregate, are reasonably likely to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995have a Material Adverse Effect, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of since the date of its respective Historical Statutory Statements, thereof neither the Borrower nor any material Subsidiary has incurred any liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, individually or in accordance with Statutory Accounting Principlesthe aggregate, would have been required are reasonably likely to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsa Material Adverse Effect.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower Vesta has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower Vesta and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower Vesta and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Vesta and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower Vesta or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Vesta has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995l995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower Vesta and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year of the Borrower ended on September 30, 2000, and as of the last day of the fiscal quarters of the Borrower ended on December 31, 2000, March 31, 2001 and June 30, 19992001, and the related consolidated statements of income, stockholdersshareholders' equity and cash flows of the Borrower and its Subsidiaries for such fiscal year and quarters, with, in the nine-month period then ended. Except as set forth in Schedule 4.11(acase of said fiscal year, reports thereon by Ernst & Young LLP:
(i) attached heretoare complete, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles accurate and to normal year-end audit adjustments) and fairly present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and for the consolidated results of operations respective periods covered thereby;
(ii) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as set forth in the notes thereto; and
(iii) other than as disclosed in Schedule 4.05(a), show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the dates thereof, including liabilities for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above taxes, material commitments and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)long‑term leases.
(b) The consolidated balance sheet of IBP and its Subsidiaries as of the last day of the fiscal year of IBP ended on December 30, 2000, and as of the last day of the fiscal quarter of IBP ended on June 30, 2001, and the related consolidated statements of earnings, changes in stockholders' equity and comprehensive income, and of cash flows of IBP and its Subsidiaries for such fiscal year and quarter, with, in the case of said fiscal year, reports thereon by PriceWaterhouseCoopers LLP:
(i) are complete, accurate and fairly present the financial condition of IBP and its Subsidiaries as of the respective dates thereof and for the periods covered thereby; 183
(ii) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby, except as set forth in the notes thereto; and
(iii) other than as disclosed in Schedule 4.05(b), show all material indebtedness and other liabilities, direct or contingent, of IBP and its consolidated Subsidiaries as of the dates thereof, including liabilities for taxes, material commitments and long‑term leases.
(c) The Borrower has heretofore furnished to the Lender copies Lenders its pro forma consolidated balance sheet as of March 31, 2001, prepared giving effect to the Transactions as if the Transactions had occurred on such date and included in the model delivered by the Borrower to the Lenders prior to the date hereof. Such pro forma consolidated balance sheet (i) has been prepared in good faith based on assumptions believed by the Borrower to be reasonable, (ii) is based on the best information available to the Borrower after due inquiry, (iii) accurately reflects all adjustments necessary to give effect to the Transactions and (iv) presents fairly, in all material respects, the pro forma financial position of the Annual Statements of each of the Insurance Borrower and its consolidated Subsidiaries as of December March 31, 19982001, 1997as if the Transactions had occurred on such date.
(d) Since September 30, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject2000, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles Borrower and to normal year-end adjustmentsits Subsidiaries (other than IBP and its Subsidiaries), were in compliance and December 30, 2000, with applicable Requirements respect to IBP and its Subsidiaries, there has been no Material Adverse Effect and no development which has any reasonable likelihood of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshaving a Material Adverse Effect.
(ce) Each of The Borrower is, and the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern consolidated basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets sheet of the Borrower and its Subsidiaries as of December March 31, 1998, 1997, and 19961995, and the related statements statement of income, stockholders' equity retained earnings and cash flow of the Borrower for the period from February 7, 1995 (inception) to March 31, 1995, certified by Arthur Andersen, LLP, and the ▇▇▇▇▇n▇▇ ▇▇▇▇▇ments of assets, liabilities and net investment and advances of the Initial Hotels as of December 30, 1994, and the related combined statements of revenues and expenses excluding income taxes, and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June year ended December 30, 19991994, and the related statements of incomecertified by Arthur Andersen, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached heretoLLP, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect copies ▇▇ ▇▇▇c▇ ▇▇▇▇ ▇een furnished to the unaudited financial statementsLender, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and fairly present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis the combined assets, liabilities and net investment and advances of the Initial Hotels as of the respective such dates thereof and the consolidated results of the operations of the Borrower and the revenues and expenses excluding income taxes, and cash flows of the Initial Hotels for the period ended on such dates, all in conformity with GAAP.
(b) Since March 31, 1995, there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries had at March 31, 1995 any material obligation, contingent liability or liability for the respective periods then ended. Except as fully taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the most recent financial statements balance sheet at such date referred to in subsection (a) above and or in the notes thereto.
(d) The unaudited pro forma balance sheets of the Borrower and in respect of the Initial Hotels (the "Pro Forma Balance Sheets"), there are no material liabilities or obligations copies of which have been delivered to the Lender, have been prepared with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December March 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly StatementsInitial Hotels, to as of March 24, 1995, and reflect as of such dates, the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the pro forma financial condition of the respective Insurance Subsidiaries covered thereby as Borrower and of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsInitial Hotels.
(ce) Each of The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hospitality Properties Trust)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated Consolidated balance sheet of the Borrower WPC and its Consolidated Subsidiaries as of June 30at December 31, 1999, and the related Consolidated statements of income, stockholders' equity retained earnings and cash flows flow of WPC and its Subsidiaries for the nine-month period fiscal year then ended. Except , in each case certified by PricewaterhouseCoopers, LLP, and the Consolidated balance sheet of the Borrower Consolidated Group as set forth in Schedule 4.11(a) attached heretoat August 31, such 2000, and the related Consolidated statements of income, retained earnings and cash flow of the Borrower Consolidated Group for the eight months then ended, duly certified by the chief financial statements officer of WPC, copies of which have been prepared in accordance with Generally Accepted Accounting Principles (furnished to each Lender Party, fairly present, subject, with respect to in the unaudited financial statementscase of said balance sheets as at August 31, 2000, and said statements of income and cash flow for the eight months then ended, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the Consolidated financial condition of the Borrower such Person and its Subsidiaries on a consolidated basis as at such dates and the Consolidated results of the respective dates thereof and the consolidated results of operations of the Borrower such Person and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such date, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 19981999 and through the Effective Date, 1997there has been no Material Adverse Change and there have been no events or developments that in the aggregate have had a Material Adverse Effect (other than the commencement of the Cases or as disclosed in any public disclosure made by any Borrower or as otherwise disclosed to the Lenders prior to the Effective Date).
(c) None of the Borrowers or any of their Subsidiaries had at December 31, 1996 1999 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment that is required by GAAP to be included in a balance sheet which is not reflected in the balance sheet referred to in subsection (a) above or in the notes thereto.
(d) The unaudited projected consolidated balance sheet of the Borrowers and 1995their Consolidated Subsidiaries, a copy of which has been delivered to each Lender Party, has been prepared as of September 30, 2000 and for reflects as of such date the fiscal years then ended, each as filed with projected Consolidated financial condition of the relevant Insurance Regulatory Authority Borrowers and their Subsidiaries. Such projected financial statement (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments including any related schedules and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesnotes) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected GAAP on the basis of the statements and assumptions set forth in the respective notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsthereto.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Debt Agreement (WHX Corp)
Financial Matters. (a) The Borrower has heretofore furnished to To the Lender copies knowledge of (i) the Borrower, the ----------------- audited consolidated balance sheets of the Borrower ▇▇▇▇▇▇▇▇ at November 30, 1995, 1994 and its Subsidiaries as of December 31, 1998, 1997, and 1996, 1993 and the related consolidated statements of income, stockholders' stockholders equity and cash flows of ▇▇▇▇▇▇▇▇ for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June three-year period ended November 30, 19991995 certified by Ernst & Young, and the related statements L.L.P., copies of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements which have been delivered to the Agent, were prepared in accordance with Generally Accepted Accounting Principles (subjectGAAP, with respect to have been prepared from, and are consistent with, the unaudited books and records of ▇▇▇▇▇▇▇▇ and fairly present the consolidated financial statements, to the absence position of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis ▇▇▇▇▇▇▇▇ as of at the respective dates thereof and the consolidated results of operations and cash flows of the Borrower and its Subsidiaries ▇▇▇▇▇▇▇▇ for the respective periods then ended. Except as fully reflected in the most recent financial statements referred No events which have had or could reasonably be expected to above and the notes theretohave a Material Adverse Effect have occurred since November 30, there are no material liabilities or obligations 1995 (it being understood that, with respect regard solely to the Borrower or any period from November 30, 1995 to the Closing Date, such representation is made as to the knowledge of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not duethe Borrower).
(b) The Borrower has heretofore furnished to To the Lender copies knowledge of the Annual Statements Borrower, the unaudited consolidated balance sheets of each of the Insurance Subsidiaries as of December ▇▇▇▇▇▇▇▇ at August 31, 1998, 1997, 1996 and 1995the related consolidated statements of income, stockholders equity and cash flows of ▇▇▇▇▇▇▇▇ for the fiscal years nine-month period then ended, each as filed copies of which have been delivered to the Agent, were prepared in accordance with GAAP consistently applied (except to the relevant Insurance Regulatory Authority (collectivelyextent noted therein), have been prepared from, and are consistent with, the books and records of ▇▇▇▇▇▇▇▇ and fairly present the consolidated financial position of ▇▇▇▇▇▇▇▇ as of such date and the consolidated results of operations and cash flows of ▇▇▇▇▇▇▇▇ for the period covered thereby, in each case subject to normal year-end audit adjustments (including footnotes), consistent with past practices.
(c) The unaudited pro forma sheet of the Borrower as of August 31, 1996, a copy of which has heretofore been delivered to the Agent (the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, gives pro forma effect to the consummation of the ▇▇▇▇▇▇▇▇ Acquisition, the Historical Statutory Statements (including, without limitationissuance of the Senior Indebtedness, the provisions completion of the Equity Financing, the extensions of credit made therein for investments under this Agreement, the payment of transaction fees and expenses incident to the foregoing, and the valuation thereofconsummation of all other Transactions, reserves, policy and contract claims and statutory liabilities) have all as if such events had occurred on such date. The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated herebyTransactions as described above. Prior to the Closing Date, the Borrower has not engaged in any business, owned any assets or incurred or assumed any liabilities except in connection with the execution and performance of the Transaction Documents.
(d) The Borrower has prepared, and has heretofore furnished to the Agent a copy of, annual projected balance sheets and statements of income and cash flows of the Borrower for the six-year period beginning with the year ended December 31, 1996, giving effect to the consummation of the ▇▇▇▇▇▇▇▇ Acquisition, the issuance of the Senior Indebtedness, the completion of the Equity Financing, the extensions of credit made under this Agreement, the payment of transaction fees and expenses related to the foregoing, and the consummation of the other Transactions (the "Projections"). In the opinion of management of the Borrower, the assumptions used in the preparation of the Projections were fair, complete and reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The Projections have been prepared in good faith by the executive and financial personnel of the Borrower, are complete and represent a reasonable estimate of the future performance and financial condition of the Borrower, subject to the uncertainties and approximations inherent in any projections and without any representation or warranty that the projected results will be achieved.
(e) Upon consummation of the Transactions and as of the Closing Date:
(i) The fair saleable value of the assets of the Borrower and each of its Subsidiaries, on a stand-alone basis, exceeds the amount that will have reasonably be required to be paid on or in respect of the existing debts and other liabilities (including Contingent Obligations) of such Person as they mature.
(ii) The assets of each of the Borrower and each of its Subsidiaries, on a stand-alone basis, do not constitute unreasonably small capital sufficient for any such Person to carry on out its businesses business as conducted as of the Closing Date and as proposed to be conducted, (ii) will have assets with a fair saleable valueincluding the capital needs of any such Person, determined on a going concern basis, (A) not less than taking into account the amount required particular capital requirements of the business conducted and to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured)conducted by such Person, and the availability of capital in respect thereof (with reference, without limitation, to the Projections).
(iii) will The Borrower does not intend to, and will does not believe that it willintend to permit any of its Subsidiaries to, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturemature (taking into account the timing and amounts of cash to be payable on or in respect of debt of each of such Person). As of the Closing Date, the anticipated cash flow of the Borrower and each of its Subsidiaries, after taking into account all presently anticipated uses of the cash of each such Person, will at all times be sufficient to pay all amounts on or in respect of Indebtedness of each such Person when such amounts are, as anticipated as of the Closing Date, required to be paid.
(iv) The Borrower does not intend, and does not believe, that final judgments against any of the Borrower or its Subsidiaries in actions for money damages will be rendered at a time when, or in an amount such that, any such Person will be unable to satisfy any such judgments promptly in accordance with their terms (taking into account the maximum reasonable amount of such judgments in any such actions and the earliest reasonable time at which such judgments might be rendered). The anticipated cash flow of the Borrower and each of its Subsidiaries, on a stand-alone basis, after taking into account all other anticipated uses of the cash of each such Person (including the payments on or in respect of debt referred to in clause (iii) of this SECTION 4.10(E)), will at all times be sufficient to pay all such judgments promptly in accordance with their terms.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Petersen Holdings LLC)
Financial Matters. (a) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Everest Group and its Subsidiaries as of December 31, 19982011, 1997, 2010 and 1996, 2009 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersPricewaterhouseCoopers thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Everest Group and its Subsidiaries as of June 30March 31, 19992012, and the related statements of income, stockholders' ’ equity and cash flows for the nine-three month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly in all material respects the financial condition of the Borrower Everest Group and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Everest Group and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Insurance Subsidiaries Subsidiary as of December 31, 19982011, 1997, 1996 2010 and 1995, 2009 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statements of each Insurance Subsidiary as of March 31, 2012, and for the three month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, including the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-year end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19982008, 19972007, and 19962006, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19992009, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the SEC and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect.
(b) The Borrower, after giving effect to the consummation of the transactions contemplated hereby, (i) has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) has assets with a fair saleable value, determined on a going concern basis, (y) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (z) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
(c) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the its Insurance Subsidiaries as of December 31, 19982008, 1997, 1996 2007 and 19952006, and for the fiscal years then ended, as applicable, and (ii) the Quarterly Statements of each of its Insurance Subsidiaries as of the end of the first fiscal quarter of 2009, and for the end of the fiscal quarter then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP where required (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Everest Group and its Subsidiaries as of December 31, 19982006, 1997, 2005 and 1996, 2004 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersPricewaterhouseCoopers thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Everest Group and its Subsidiaries as of June 30March 31, 19992007, and the related statements of income, stockholders' ’ equity and cash flows for the nine-three month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly in all material respects the financial condition of the Borrower Everest Group and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Everest Group and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Everest Group has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Insurance Subsidiaries Subsidiary as of December 31, 19982006, 1997, 1996 2005 and 1995, 2004 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statements of each Insurance Subsidiary as of March 31, 2007, and for the three month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-year end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The consolidated balance sheet of the Borrower has heretofore furnished to and its Subsidiaries as at December 31, 1999, and the Lender copies related consolidated statements of (i) income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, audited by PricewaterhouseCoopers, L.L.P. and the consolidated balance sheets of the Borrower and its Subsidiaries as of at December 31, 1998, 1997, and 19961999, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the twelve months then ended, certified by the chief financial officer or treasurer of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as of June 30at December 31, 1999, and the related said statements of income, stockholders' equity retained earnings and cash flows for the nine-month period twelve months then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 19981999, 1997, 1996 there has been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each Neither the Borrower nor any of its Subsidiaries had at December 31, 1999 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in subsection (a) above or in the notes thereto.
(d) The Projections that have been delivered to each Lender, were prepared on the basis of the assumptions expressed therein, which assumptions the Borrower believed to be reasonable based on the information available to the Borrower at the time so furnished and on the Restatement Effective Date.
(e) The Borrower is, and on a consolidated basis the Borrower and its SubsidiariesSubsidiaries are, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureSolvent.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of January 3, 2004, December 3128, 19982002 and December 29, 1997, and 19962001, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick Ernst & Young LLP or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (as the case may be) thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999the last day of the ninth fiscal month of fiscal year 2004, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) adjustments and present fairly in all material respects the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of and its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that are required in accordance with GAAP to be reflected in such financial statements and that are not so reflected.
(b) The Borrower has heretofore furnished Pro Forma Balance Sheet gives pro forma effect to the Lender copies consummation of the Annual Statements of each IPO, repayment of the Insurance Subsidiaries Existing Senior Bank Facilities, the Subordinated Notes and the other Terminating Indebtedness, the Class A Preferred Stock Repurchase, the initial extensions of credit made under this Agreement, the payment of transaction fees and expenses related to the foregoing, and the consummation of the other Transactions, all as if such events had occurred on the date as of December 31, 1998, 1997, 1996 and 1995, and for which the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements")Pro Forma Balance Sheet is prepared. Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were based on stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each respects the consolidated financial condition of the Borrower and its Subsidiaries, Subsidiaries on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of the transactions contemplated herebydescribed above.
(c) The Borrower has prepared, and has heretofore furnished to the Administrative Agent a copy of, projected consolidated balance sheets and statements of income and cash flows of the Borrower and its Subsidiaries for the six fiscal-quarter period through the end of the fourth fiscal quarter of fiscal year 2005, giving effect to the consummation of the IPO, the repayment of the Existing Senior Bank Facilities, the Subordinated Notes and the other Terminating Indebtedness, the Class A Preferred Stock Repurchase, the initial extensions of credit made under this Agreement, the payment of transaction fees and expenses related to the foregoing, and the consummation of the other Transactions (the “Projections”). In the good faith opinion of management of the Borrower, the assumptions used in the preparation of the Projections were fair, complete and reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The Projections have been prepared in good faith by the executive and financial personnel of the Borrower, are complete and represent a reasonable estimate of the future performance and financial condition of the Borrower and its Subsidiaries, subject to the uncertainties and approximations inherent in any projections.
(d) After giving effect to the consummation of the Transactions, the Credit Parties taken as a whole on a consolidated basis (i) will have capital sufficient to carry on its their businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, which are (Ay) not less than the amount required to pay the probable liability on its their existing debts as they become absolute and matured and (Bz) greater than the total amount of its their liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and maturedmatured in their ordinary course), and (iii) will do not intend to, and will do not believe that it they will, incur debts or liabilities beyond its their ability to pay such debts and liabilities as they maturemature in their ordinary course.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to Financial Statements. Included in Schedule 4.6 are the Lender copies consolidated financial statements of Polycom (collectively, the “Polycom Financial Statements”) consisting of (i) the consolidated audited financial statements (including the consolidated balance sheets and statements of operations, stockholders’ equity (deficit), comprehensive income (loss) and cash flow) of Polycom as of and for the Borrower fiscal years ended December 31, 2017, December 31, 2016 and its Subsidiaries December 31, 2015 (the balance sheet as of December 31, 19982017, 1997the “Polycom Recent Audited Balance Sheet”) and (ii) a consolidated unaudited balance sheet of Polycom, and 1996as of February 28, 2018 (the “Polycom Recent Balance Sheet”) and the related consolidated unaudited statements of income, stockholders' equity operations and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and two (ii2) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period months then ended. Except as set forth in Schedule 4.11(aThe Polycom Financial Statements (A) attached hereto, are prepared from and consistent with such financial statements as have been prepared and used by the Polycom Companies in the ordinary course of measuring and reporting the Polycom Companies’ operating results, financial condition and/or cash flow; (B) are prepared in accordance with Generally Accepted Accounting Principles (subjectGAAP, as applied on a consistent basis, and with respect to the books and records of the Polycom Companies; provided, however, that the consolidated unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and statements are subject to normal year-end audit adjustmentsadjustments (which if made would not, individually or in the aggregate, be material to Polycom) and present to final adjustments related to the purchase of Obihai Technology, Inc. (which if made would not, individually or in the aggregate, be material to Polycom) and do not contain all footnotes required under GAAP, which if presented would not provide, individually or in the aggregate, additional material information; and (C) fairly present, in all material respects, the assets, Liabilities, financial condition position, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis Polycom Companies as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the periods indicated. None of Polycom, its Subsidiaries, nor any of their respective periods then ended. Except as fully reflected in the most recent financial statements referred independent registered public accounting firms has indicated to above Polycom, and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or Knowledge of Polycom, neither Polycom nor any of its Subsidiaries has been made aware of (i) any nature whatsoever (whether absolutefraud, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies material, that involves any of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) Polycom’s or its Subsidiaries’ management or other employees or other Persons who have been prepared in accordance with Statutory Accounting Principles (except as may be reflected a role in the notes thereto and subject, with respect to preparation of financial statements or the Quarterly Statements, to the absence of notes required internal accounting controls utilized by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower Polycom and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, Subsidiaries or (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than any claim or allegation regarding the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureforegoing.
Appears in 1 contract
Financial Matters. (a) The Borrower has Borrowers have heretofore furnished to the Lender copies of (i) the audited consolidated financial statements (including consolidated balance sheets sheets, consolidated statements of income and consolidated statements of cash flows) of the Borrower Company and its consolidated Subsidiaries as of December at March 31, 19981996, 1997, and 1996, 1998 and for each of the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersthree (3) consecutive Fiscal Years ended on such dates, and (ii) the unaudited consolidated financial statements (including consolidated balance sheet sheets, consolidated statements of income and consolidated statements of cash flows) of the Borrower Company and its consolidated Subsidiaries as of June 30the March 31, 19991999 (collectively, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due"Financial Statements").
(b) The Borrower Financial Statements have been prepared in accordance with GAAP on a consistent basis for all periods, are complete and correct in all material respects, and fairly present the consolidated financial condition of the Company and its consolidated Subsidiaries as at said dates, and the results of operations for the periods stated. The books of account and other financial records of the Company and each of the Subsidiaries have been maintained in accordance with GAAP, consistently applied. The Borrowers acknowledge that the financial results set forth in its Financial Statements for the first, second and third quarters of the Fiscal Year ended March 31,1999 will require restatement and that the representations set forth in this Section 3.01(b) are subject to, and qualified by, any such Restatement(s).
(c) Neither the Company nor any of the Subsidiaries has heretofore any liabilities, Indebtedness, obligations or commitments of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise above $100,000 in the aggregate or $25,000 individually (collectively "Liabilities and Contingencies"), including, without limitation, Liabilities and Contingencies under employment agreements and with respect to any "earn-outs', stock appreciation rights, or related compensation obligations, except: (i) Liabilities and Contingencies disclosed in the Financial Statements or footnotes thereto, or in the Pro Forma Balance Sheet, (ii) Liabilities and Contingencies not incurred in the ordinary course of the Business Operations, all of which (and the amounts thereof, to the extent determinable) are disclosed on Schedules to this Agreement (to the extent required to be so disclosed hereunder) or in public filings made with the SEC under the Securities Exchange Act of 1934, as amended (true and complete copies of which filings have been furnished to the Lender copies Lender), (iii) Liabilities and Contingencies incurred in the ordinary course of business and consistent with past practice since the date of the Annual Statements of each most recent Financial Statements, which are not required to be disclosed on Schedules to this Agreement, or (iv) those Liabilities which are not required to be disclosed under GAAP. The reserves, if any, reflected on the consolidated balance sheet of the Insurance Company and the Subsidiaries included in the most recent Financial Statements are appropriate and reasonable. The Borrowers have not had and do not presently have any contingent obligations, liabilities for taxes or unusual forward or long-term commitments except as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as specifically set forth in the Financial Statements or in Schedule 4.11(b"3.01" annexed hereto.
(d) attached heretoExcept as otherwise reflected on Schedule "3.01," Schedule "3.04" or Schedule "3.05" to this Agreement, since the Historical Statutory Statements (date of the most recent Financial Statements, no Material Adverse Effect shall have occurred and shall be continuing, including, without limitation, the provisions made therein for investments following:
(i) there has been no change in any assumptions underlying, or in any methods of calculating, any bad debt, contingency or other reserve relating to the Company or any of the Subsidiaries;
(ii) there have been no write-downs in the value of any inventory of, and there have been no write-offs as uncollectible of any notes, accounts receivable or other receivables of, the Company and the valuation thereofSubsidiaries, reservesexcept for write-downs and write-offs in the ordinary course of business and consistent with past practice, policy none of which shall be material (and contract all of which are described in the Schedules to this Agreement or in the Financial Statements);
(iii) no material debts have been canceled, no claims or rights of substantial value have been waived and statutory liabilitiesno significant properties or assets (real, personal or mixed, tangible or intangible) have been prepared in accordance with Statutory Accounting Principles (sold, transferred, or otherwise disposed of by the Company or any Subsidiary, except as may be reflected in the notes thereto ordinary course of business and subject, consistent with respect to past practice;
(iv) there has been no change in any method of accounting or accounting practice utilized by the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition Company or any of the respective Insurance Subsidiaries covered thereby as Subsidiaries;
(v) no material casualty, loss or damage has been suffered by the Company or any of the respective dates thereof and Subsidiaries, regardless of whether such casualty, loss or damage is or was covered by insurance; and
(vi) no action described in this Section 3.01(d) has been agreed to be taken by the results of operations, changes in capital and surplus and cash flow Company or any of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsSubsidiaries.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower Company and its Subsidiaries as of December 31the last day of the fiscal year ended on January 1, 1998, 19972000, and 1996the last day of the fiscal quarter ended July 1, 2000, and the related consolidated statements of income, stockholders' equity income and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower Company and its Subsidiaries for such fiscal year and fiscal quarter (and in the case of such balance sheets and statements for such fiscal year, with reports thereon by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., independent public accountants), copies of which have been delivered to the Agent and each Lender prior to the execution of this Agreement, fairly present the consolidated financial position of the Company and its Subsidiaries as of June 30, 1999the date of said balance sheets and the consolidated results of their operations for the period covered by said statements of income and cash flows, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to GAAP consistently applied in all material respects by the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower Company and its Subsidiaries on a consolidated basis throughout the periods involved, except as set forth in the notes thereto. There are no material liabilities, contingent or otherwise, of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully Company or any Subsidiary not reflected in the most recent financial statements referred to above and consolidated balance sheet as of January 1, 2000 or in the notes thereto, there thereto which are no material liabilities or obligations with respect required to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)be disclosed therein.
(b) The Borrower Since January 1, 2000, there has heretofore furnished been no Material Adverse Effect and no development which is likely to have a Material Adverse Effect, except as reflected in the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as Company's periodic reports filed with the relevant Insurance Regulatory Authority Securities and
(collectivelyc) There is no material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitments which is not reflected in the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached heretoJanuary 1, 2000 consolidated financial statements of the Historical Statutory Statements (including, without limitation, the provisions made therein for investments Company and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected its Subsidiaries or in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes which are required by Statutory Accounting Principles GAAP to be disclosed therein and to normal year-end adjustments), were no liability reflected in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required such notes is likely to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsa Material Adverse Effect.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 1996, and 19961995, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19991998, and the related statements of income, cash flows and stockholders' equity and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 6.1, or (z) any Form 8-K filed by the Borrower with the Securities and Exchange Commission and previously delivered by the Borrower to Lenders, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies unaudited pro forma balance sheet of the Annual Statements of each of the Insurance Subsidiaries Borrower as of December 31June 30, 1998, 1997a copy of which has heretofore been delivered to the Agent, 1996 and 1995gives pro forma effect to the consummation of the initial extensions of credit made under this Agreement, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Borrower on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to consolidated balance sheet of CEI and its consolidated Subsidiaries as at December 31, 2002, and the Lender copies related consolidated statements of (i) income, retained earnings and cash flows of CEI and its consolidated Subsidiaries for the audited fiscal year then ended, certified by KPMG LLP, and the consolidated balance sheets of the Borrower CEI and its consolidated Subsidiaries as of December 31at September 30, 1998, 1997, and 19962003, and the related consolidated statements of incomeincome and cash flows of CEI and its consolidated Subsidiaries for the nine months then ended, stockholders' equity certified by the chief financial officer of CEI, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as at September 30, 2003, and said statements of income and cash flows for the fiscal years nine months then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower CEI and its consolidated Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower CEI and its consolidated Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of Since December 31, 19982002, 1997there have been no events or developments that in the aggregate have had, 1996 or could reasonably be expected to have, a Material Adverse Effect, except as described in the filings and 1995, and for the fiscal years then ended, each as reports of CEI filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments Securities and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect Exchange Commission prior to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustmentsdate hereof or on Schedule 4.04(b), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each Neither CEI nor any of its consolidated Subsidiaries had at September 30, 2003 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is required by GAAP to be, but is not, reflected in the Borrower balance sheet or the notes to the related financial statements at such date referred to in subsection (a) above or in the notes thereto.
(d) The unaudited pro forma projections of CEI and its Subsidiaries, a copy of which has been delivered to the Administrative Agent, have been prepared as of January, 2004, and were prepared in good faith based upon assumptions believed by CEI to be reasonable at such date.
(e) As of the Closing Date (and after giving effect to the consummation making of Loans and the issuance of Letters of Credit on the Closing Date) CEI, the Borrower and each member of the transactions contemplated herebyCEI Group listed on Schedule 4.04(e) is Solvent. From and after the Closing Date, each of CEI and the Borrower is Solvent.
(f) For purposes of the last paragraph of Section 3.10(b) of the 8.10% Senior Notes Indenture and the last paragraph of Section 3.2(b) of the First Supplemental Indenture, CEI has classified and will maintain the classification of:
(i) will have capital sufficient an aggregate amount of $112,635,500 of the Term Loans funded on the Closing Date (the “Closing Term Loan Exposure”), the 8.10% Senior Notes-Related Term Loans when funded (the “Senior Notes Term Loan Exposure” and, collectively with the Closing Term Loan Exposure, the “Specified Term Loan Exposure”), and an aggregate amount of $762,000 of Letter of Credit Liabilities incurred on the Closing Date (the “Specified Revolving Exposure”), in each case together with all Guaranties thereof under the Financing Documents, as Debt incurred pursuant to carry on its businesses as conducted Section 3.10(b)(vi) of the 8.10% Senior Notes Indenture and as proposed to be conducted, Section 3.2(b)(vi) of the First Supplemental Indenture;
(ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities all other Term Loans (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and maturedall CEA-Related Term Loans), all other Revolving Credit Loans and all other Letter of Credit Liabilities and Reimbursement Obligations (including in respect of CMA-Related Letters of Credit), together with all guaranties thereof under the Financing Documents, as Debt incurred pursuant to Section 3.10(b)(xi) of the 8.10% Senior Notes Indenture and clause (xi) of Section 3.2(b) of the First Supplemental Indenture;
(iii) will not intend to, the Specified Revolving Exposure as the last Revolving Credit Loans and will not believe that it will, incur debts or liabilities beyond its ability Letter of Credit Liabilities to pay such debts be credited with any payment applied to Revolving Credit Loans and liabilities Letter of Credit Liabilities; and
(iv) the Specified Term Loan Exposure as they maturethe last Term Loans to be credited with any payment applied to Term Loans.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 1996, 1995 and 1994 and the related statements of income, stockholders' equity and cash flows for the fiscal years then ended, together with the each opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersthe independent certified public accounting firm retained by the borrower thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19991997, and the related statements of income, stockholders' equity and cash flows for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of (i) the Annual Statements of each of the Insurance Subsidiaries Everest Re and Everest National as of December 31, 19981996, 1997, 1996 1995 and 1995, 1994 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statements of each of Everest Re and Everest National as of March 31, 1997, and for the three-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were ,in all material respects, in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Everest Reinsurance Holdings Inc)
Financial Matters. (a) The Borrower Platinum Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Platinum Holdings and its Subsidiaries as of December 31, 19982010, 19972009 and 2008, and 1996, and in each case with the related statements of operations and comprehensive income, stockholders' shareholders’ equity and cash flows for the fiscal years Fiscal Year then ended, together with the opinion of KPMG Peat Marwick thereon Bermuda (in the case of 2010 and 2009) or PricewaterhouseCoopersKPMG LLP (in the case of 2008) thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Platinum Holdings and its Subsidiaries as of June 30March 31, 19992011, and the related statements of income, stockholders' shareholders’ equity and cash flows for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly fairly, in all material respects, the financial condition position of the Borrower Platinum Holdings and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, in each case as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedindicated. Except as fully reflected for liabilities and obligations disclosed or provided for in the most recent financial statements referred to above and the notes thereto or the most recent financial statements and the notes thereto delivered pursuant to Section 6.1, as of the date of such financial statements, no Credit Party had any material liability or obligation that, in accordance with GAAP, would have been required to have been disclosed or provided for in such financial statements or the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Platinum Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Material Insurance Subsidiaries Subsidiary as of December 31, 19982010, 1997and 2009 and for the Fiscal Years then ended, 1996 and 1995(ii) the Quarterly Statement of Platinum US as of March 31, 2011, and for the fiscal years three-month period then ended, in each case as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, including the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were were, in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Material Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Material Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, including reserves, policy and contract claims and statutory liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Platinum Underwriters Holdings LTD)
Financial Matters. (a) The Borrower Platinum Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Platinum Holdings and its Subsidiaries as of December 31, 19982005, 1997, 2004 and 1996, 2003 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years or period then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersthereon, and (ii) the unaudited consolidated balance sheet of the Borrower Platinum Holdings and its Subsidiaries as of June 30, 19992006, and the related statements of income, stockholders' ’ equity and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles accounting principles generally accepted in the United States of America (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles such accounting principles and to normal year-year end audit adjustments) and present fairly fairly, in all material respects, the financial condition position of the Borrower Platinum Holdings and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedindicated. Except as fully reflected for liabilities and obligations disclosed or provided for in the most recent financial statements referred to above and the notes thereto or the most recent financial statements and the notes thereto delivered pursuant to Section 6.1, as of the date of such financial statements, none of the Credit Parties had any material liability or obligation that, in accordance with GAAP, would have been required to have been disclosed or provided for in such financial statements or the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Platinum Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Material Insurance Subsidiaries Subsidiary as of December 31, 1998, 1997, 1996 2005 and 1995, 2004 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statement of Platinum US as of June 30, 2006, and for the six-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-year end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Material Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Material Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Platinum Underwriters Holdings LTD)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, and 19962005, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992006, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the nine-month six (6)-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes theretothereto as of the Restatement Effective Date, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has prepared, and has heretofore furnished to the Lender copies Administrative Agent a copy of, annual projected balance sheets and statements of income and cash flows of the Annual Statements of each of Borrower for the Insurance Subsidiaries as of five-year period beginning with the year ending December 31, 19982006, 1997giving effect to the initial extensions of credit made under this Agreement, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments assumption of the Existing Letters of Credit under this Agreement, and the valuation thereofpayment of transaction fees and expenses related to the foregoing (the “Projections”). In the opinion of management of the Borrower, reservesthe assumptions used in the preparation of the Projections were fair, policy complete and contract claims reasonable when made and statutory liabilities) continue to be fair, complete and reasonable as of the Restatement Effective Date. The Projections have been prepared in accordance with Statutory Accounting Principles (except good faith by the executive and financial personnel of the Borrower, are complete as may be reflected in of the notes thereto Restatement Effective Date and subject, with respect to represent as of the Quarterly Statements, to Restatement Effective Date a reasonable estimate of the absence of notes required by Statutory Accounting Principles future performance and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of Borrower, subject to the respective dates thereof uncertainties and the results of operations, changes approximations inherent in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsprojections.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Financial Matters. (a) The Borrower has heretofore furnished made available to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of for the fiscal years ending December 31, 19982010, 1997December 31, 2011 and 1996December 31, 2012 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years or period then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersErnst & Young LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 1999the last day of the last fiscal quarter ending at least 45 days prior to the Closing Date, and the related statements of income, stockholders' ’ equity and cash flows for the nine-month partial period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements (A) have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments), (B) and present fairly in all material respects the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, as of the respective dates thereof and for the consolidated results of operations periods indicated and (C) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries for as of the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)date thereof.
(b) The Borrower has heretofore furnished made available to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Insurance Subsidiaries Subsidiary as of December 31, 19982010, 1997, 1996 2011 and 1995, and 2012 for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statement of each Insurance Subsidiary as of the last day of the last fiscal quarter ending at least 45 days before the Closing Date, and for the period beginning on January 1, 2013 and ending on such date, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each Neither (i) the board of directors of the Borrower, a committee thereof or an authorized officer of the Borrower and its Subsidiaries, after giving effect has concluded that any financial statement previously furnished to the consummation Administrative Agent or any Lender should no longer be relied upon because of the transactions contemplated herebyan error, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, nor (ii) will have assets with has the Borrower been advised by its auditors that a fair saleable value, determined on a going concern basis, (A) previously issued audit report or interim review cannot less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturerelied upon.
Appears in 1 contract
Sources: Credit Agreement (Unum Group)
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2014 and 19962013, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 19992015, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the SEC and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished that, individually or in the aggregate, are reasonably likely to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995have a Material Adverse Effect, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of since the date of its respective Historical Statutory Statements, thereof neither the Borrower nor any material Subsidiary has incurred any liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, individually or in accordance with Statutory Accounting Principlesthe aggregate, would have been required are reasonably likely to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsa Material Adverse Effect.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished Attached to Section 4.7(a) of the Lender Disclosure Schedule are true, correct, and complete copies of of:
(i) the audited consolidated combined balance sheets of the Borrower Company and its Subsidiaries St. ▇▇▇▇▇▇ Home Recovery Care, LLC as of December 31, 19982020 and December 31, 1997, and 19962019, and the related audited combined statements of income, stockholders' equity income and cash flows flow of the Company and St. ▇▇▇▇▇▇ Home Recovery Care, LLC for the fiscal years then ended, together accompanied by any notes thereto and the reports of the Company’s independent accountants with respect thereto (such financial statements, collectively, the opinion “Audited Financials” and such balance sheet as of KPMG Peat Marwick thereon or PricewaterhouseCoopersDecember 31, 2020, the “Audited Balance Sheet” and the date thereof the “Audited Balance Sheet Date”); and
(ii) the unaudited consolidated combined balance sheet sheets of the Borrower Company and St. ▇▇▇▇▇▇ Home Recovery Care, LLC as of May 31, 2021 (the “Most Recent Balance Sheet” and the date thereof, the “Most Recent Balance Sheet Date”) and the related unaudited combined statements of income and cash flow of the Company and St. ▇▇▇▇▇▇ Home Recovery Care, LLC for the five (5) months then ended (the “Interim Financials” and, together with the Audited Financials, the “Financials”).
(b) The Financials were prepared on the basis of and are consistent in all material respects with the books and records of the Company and its Subsidiaries as kept in the ordinary course, are consistent with past practice, and are in accordance with GAAP (subject in the case of June 30the Interim Financials, 1999to normal recurring year-end adjustments (which adjustments will not be, individually or in the aggregate, material in amount or scope, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles notes) applied on a consistent basis throughout the periods indicated and to normal year-end audit adjustments) and fairly present fairly in all material respects the financial condition position and results of operations of the Borrower Company and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not dueindicated).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each Except as set forth on Section 4.7(c) of the Borrower Disclosure Schedule, the Company and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, Subsidiaries (i) will do not have capital sufficient to carry on its businesses as conducted any outstanding Indebtedness and as proposed to be conducted, (ii) will have assets with a fair saleable valueare not obligated to make any loans or advances to any Person. Neither the Company nor any Subsidiary thereof has assumed, determined guaranteed, or otherwise become directly or contingently liable on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount any Indebtedness of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureany other Person.
Appears in 1 contract
Sources: Merger Agreement (Amedisys Inc)
Financial Matters. (a) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 1998, 1997, 2009 and 1996, 2008 and the related statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 2009, 2008 and 2007, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersKPMG, LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30March 31, 19992010, and the related statements of income, stockholders' equity income and cash flows for the ninethree-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and fairly present fairly in accordance with GAAP (x) the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof thereof, and (y) the consolidated results of operations of the Borrower and its Subsidiaries Subsidiaries, on a consolidated basis, for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that would in accordance with GAAP have been required to be disclosed or provided for in such financial statements.
(b) The Borrower has heretofore furnished or made available to the Administrative Agent and each Lender copies of (i) the Annual Statements of each of the its Material Insurance Subsidiaries as of December 31, 19982009 and for the fiscal year then ended, 1997and (ii) the Quarterly Statements of each of its Material Insurance Subsidiaries as of March 31, 1996 and 19952010, and for the fiscal years three-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements")Authority. Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements Such financial statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Applicable Law when filed and fairly present fairly in accordance with SAP the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements such financial statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statementsfinancial statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsfinancial statements.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated herebyThe Borrower, (i) will have has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have has assets with a fair saleable value, determined on a going concern basis, (Ay) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (Bz) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will does not intend to, and will does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Financial Matters. (a) The Borrower Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Holdings and its Subsidiaries as of December 31, 19982006, 1997, 2005 and 1996, 2004 and the related statements of income, stockholders' ’ equity and cash flows for the fiscal years or period then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersDeloitte thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Holdings and its Subsidiaries as of June September 30, 19992007, and the related statements of income, stockholders' ’ equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-year end audit adjustments) and present fairly fairly, in all material respects, the financial condition position of the Borrower Holdings and its Subsidiaries on a consolidated basis Subsidiaries, and the results of their operations and their cash flows, as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedindicated. Except as fully reflected for liabilities and obligations disclosed or provided for in the most recent financial statements referred to above and the notes thereto or the most recent financial statements and the notes thereto delivered pursuant to Section 5.1, as of the date of such financial statements, none of the Credit Parties had any material liability or obligation that, in accordance with GAAP, would have been required to have been disclosed or provided for in such financial statements or the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Holdings has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the Material Insurance Subsidiaries Subsidiary as of December 31, 1998, 1997, 1996 2006 and 1995, 2005 and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority Authority, (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, including the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared prepared, in all material respects, in accordance with Statutory Accounting Principles SAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustmentsthereto), were in all material respects, in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Material Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow flows of the respective Material Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, including reserves, policy and contract claims and statutory liabilities), no Material Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, Neither (i) will have capital sufficient the board of directors of such Credit Party, a committee thereof or an authorized officer of such Credit Party has concluded that any financial statement previously furnished to carry on its businesses as conducted and as proposed to the Administrative Agent or any Lender should no longer be conductedrelied upon because of an error, nor (ii) will have assets with has such Credit Party been advised by its auditors that a fair saleable value, determined on a going concern basis, (A) previously issued audit report or interim review cannot less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturerelied upon.
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings LTD)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower Holdings and its Subsidiaries Consolidated Subsidiaries, as of December at January 28, 1995, April 30, 1995, July 31, 19981995, 1997October 31, 1995 and February 3, 1996, and the related statements of income, stockholders' equity retained earnings and cash flows changes in the financial position for the fiscal years year or fiscal quarter (as the case may be) then ended, together with certified (in the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet case of the Borrower January 28, 1995 and its Subsidiaries as February 3, 1996 balance sheets and related statements) by Ernst & Young LLP, copies of June 30, 1999, and the related statements of income, stockholders' equity and cash flows for the nine-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements which have been prepared in accordance with Generally Accepted Accounting Principles (subjectfurnished to each Bank, with respect to fairly present the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the consolidated financial condition of the Borrower Holdings and its Consolidated Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Holdings, Borrower and its their Consolidated Subsidiaries for the respective periods then endedended on such dates. Except as fully reflected in the most recent The financial statements referred to above and in the notes thereto, there preceding sentence are no material liabilities or obligations in accordance with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP consistently applied.
(b) The Since February 3, 1996, there has been no Material Adverse Change or Effect and no development likely to have a Material Adverse Effect.
(c) Neither of Holdings or Borrower has heretofore furnished nor any of their Subsidiaries had at February 3, 1996, any unrealized or anticipated loss, liability or obligation (whether contingent, matured or otherwise), including liabilities for taxes or Environmental Liabilities or Costs, loss contingency (as that term is defined in Statement of Financial Accounting Standard No. 5), long-term lease or unusual forward or long-term commitment which is not reflected in the audited balance sheets referred to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority in subsection (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(ba) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected above or in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, which would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsa Material Adverse Effect.
(cd) Each of The Discount Notes, the Borrower 1993 Notes and its Subsidiaries, after giving effect the Series A Preferred Stock have been redeemed in full pursuant to the consummation Redemption, or adequate provision for such redemption satisfactory to BABC has been made; and all Liens securing the 1993 Notes have been released or provision for release of the transactions contemplated hereby, (i) will have capital sufficient such Liens satisfactory to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureBABC has been made.
Appears in 1 contract
Sources: Credit Agreement (Loehmanns Inc)
Financial Matters. (a) The Borrower has heretofore furnished to the Lender copies of (i) the audited consolidated financial statements (including balance sheets sheets, statements of income, statements of cash flows and statements of stockholders’ equity) of the Borrower and its Subsidiaries as of at December 31, 19982006, 19972007 and 2008, and 1996, and the related statements of income, stockholders' equity and cash flows for the fiscal years Fiscal Years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet financial statements of the Borrower and its Subsidiaries as of June 30, 1999, 2009 and the related statements of income, stockholders' equity and cash flows for the nine-month period six (6) months then ended. Except as set forth in Schedule 4.11(aended (collectively, the “Financial Statements”).
(b) attached hereto, such financial statements The Financial Statements (i) have been prepared in accordance with Generally Accepted Accounting Principles GAAP on a consistent basis for all periods (subject, with respect to in the case of the unaudited financial statementsFinancial Statements, to the absence of notes required by Generally Accepted Accounting Principles full footnote disclosures, and to normal yearnon-end material audit adjustments), (ii) are complete and correct in all material respects, (iii) fairly present fairly the consolidated financial condition of the Borrower and its Subsidiaries on as of said dates, and the results of their operations for the periods stated, (iv) contain and reflect all necessary adjustments and accruals for a fair presentation of the Borrower’s and its Subsidiaries’ consolidated basis financial condition and results of operations as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years then endedperiods covered by such Financial Statements, each as filed and (v) make full and adequate provision, subject to and in accordance with GAAP, for the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements various assets and liabilities (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesdeferred revenues) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to fixed or contingent, and the consummation results of their operations and transactions in their accounts, as of the transactions contemplated herebydates and for the periods referred to therein.
(c) Except as set forth in Schedule 3.01(c) of the Disclosure Schedule, neither the Borrower nor any Subsidiary has any liabilities, obligations or commitments of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise (collectively “Liabilities and Contingencies”), including, without limitation, Liabilities and Contingencies under employment agreements and with respect to any “earn-outs”, stock appreciation rights, or related compensation obligations, except: (i) will have capital sufficient to carry on its businesses as conducted Liabilities and as proposed to be conductedContingencies disclosed in the Financial Statements or footnotes thereto, (ii) will Liabilities and Contingencies incurred in the ordinary course of business and consistent with past practice since the date of the most recent Financial Statements, or (iii) those Liabilities and Contingencies which are not required to be disclosed under GAAP. The reserves, if any, reflected on the balance sheet included in the most recent Financial Statements are appropriate and reasonable. Neither the Borrower nor any Subsidiary has any Indebtedness for money borrowed, outstanding obligations for the purchase price of property, contingent obligations or liabilities for taxes, or any unusual forward or long-term commitments, except as specifically set forth in Schedule 3.01 of the Disclosure Schedule.
(d) Since the date of the most recent Financial Statements, except as set forth in Schedule 3.01(d) of the Disclosure Schedule, there has been no material adverse change in the working capital, condition (financial or otherwise), assets, liabilities, reserves, business, management, operations or prospects of the Borrower and its Subsidiaries (taken as a whole), including, without limitation, the following:
(i) there has been no material change in any assumptions underlying, or in any methods of calculating, any bad debt, contingency or other reserve relating to the Borrower or any Subsidiary;
(ii) there have assets with a fair saleable value, determined on a going concern basis, been (A) not less no material write-downs in the value of any inventory of, and there have been no write-offs as uncollectible of any notes, accounts receivable or other receivables of, the Borrower or any Subsidiary other than write-offs of accounts receivable reserved in full as of the amount required date of the most recent financial statements delivered to pay the probable liability on its existing debts as they become absolute and matured Lender, and (B) greater than no reserves established for the total amount uncollectibility of its liabilities any notes, Accounts or other receivables of the Borrower or any Subsidiary, except to the extent that same have been disclosed to the Lender in writing and would not, individually or in the aggregate, cause the outstanding Advances to exceed the Revolving Credit Commitment;
(including identified contingent liabilitiesiii) no debts have been cancelled, valued at no claims or rights of substantial value have been waived, and no properties or assets (real, personal or mixed, tangible or intangible) have been sold, transferred, or otherwise disposed of by the amount that can Borrower or any Subsidiary except in the ordinary course of business and consistent with past practice;
(iv) there has been no change in any method of accounting or accounting practice utilized by the Borrower or any Subsidiary;
(v) no material casualty, loss or damage has been suffered by the Borrower or any Subsidiary, regardless of whether such casualty, loss or damage is or was covered by insurance;
(vi) Any announced changes in the policies or practices of any customer, supplier or referral source which would reasonably be expected to become absolute have a Material Adverse Effect;
(vii) Any incurrence of (A) any liability or obligation outside of the ordinary course of business, or (B) any Indebtedness other than Permitted Indebtedness;
(viii) Any declaration, setting aside or payment of any dividend or distribution or any other payment of any kind by the Company to or in respect of any equity securities of the Company; and
(ix) No action described in this Section 3.01(d) has been agreed to be taken by the Borrower or any Subsidiary.
(e) The Borrower has in place adequate systems of internal controls and matured)disclosure controls and procedures sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, and (iiiv) will not intend tothe Borrower and its management are able to obtain timely and accurate information regarding the Business Operations and all material transactions relating to the Borrower and its Subsidiaries; and no material deficiency exists with respect to the Borrower’s systems of internal controls.
(f) Schedule 3.01(f) of the Disclosure Schedule sets forth a true and complete list of all undisputed and all disputed accounts payable (itemized by creditor, dollar amount and will not believe original due date) of the Borrower and its Subsidiaries that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities are more than ninety (90) days past due as they matureof the date of this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (General Environmental Management, Inc)
Financial Matters. (a) The consolidated balance sheet of the Borrower has heretofore furnished to and its Subsidiaries as at December 31, 1995, and the Lender copies related consolidated statements of (i) income, retained earnings and cash flows of the audited Borrower and its Subsidiaries for the fiscal year then ended, certified by Coopers & Lybr▇▇▇, ▇.L.P. and the consolidated balance sheets of the Borrower and its Subsidiaries as of December 31at June 30, 1998, 1997, and 1996, and the related consolidated statements of income, stockholders' equity retained earnings and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the six months then ended, certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheets as of at June 30, 19991996, and the related said statements of income, stockholders' equity retained earnings and cash flows for the nine-month period six months then ended. Except as set forth in Schedule 4.11(a) attached hereto, such financial statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly , the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective at such dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected period ended on such dates, all in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations conformity with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)GAAP.
(b) The Borrower Since June 30, 1996, there has heretofore furnished to the Lender copies of the Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 been no Material Adverse Change and 1995, and for the fiscal years then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) there have been prepared in accordance with Statutory Accounting Principles (except as may be reflected no events or developments that in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would aggregate have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectshad a Material Adverse Effect.
(c) Each Neither the Borrower nor any of its Subsidiaries had at June 30, 1996 any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment which is not reflected in the balance sheet at such date referred to in subsection (a) above or in the notes thereto.
(d) The Projections that have been delivered to each Lender, were prepared on the basis of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.assumptions
Appears in 1 contract
Sources: Revolving Credit Agreement (Felcor Suite Hotels Inc)
Financial Matters. (a) The Borrower Matria has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower Matria and its Subsidiaries as of December 31, 1998, 1997, 1997 and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then endedended and for the fiscal year ended December 31, 1995, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower Matria and its Subsidiaries as of June November 30, 19991998, and the related statements of income, cash flows and stockholders' equity and cash flows for the nineeleven-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of the Borrower Matria and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Matria and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower Matria or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower Matria has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements audited consolidated balance sheet of each of the Insurance Gain▇▇ ▇▇▇ its Subsidiaries as of December 31, 19981997, and the related statements of income and cash flows for the fiscal year then ended, together with the opinion of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ thereon, (ii) the audited consolidated balance sheet of Universal and its Subsidiaries as of June 30, 1997, 1996 and 1995, the related statements of income and cash flows for the fiscal years year then ended, each as filed together with the relevant Insurance Regulatory Authority opinion of Feld▇▇▇ ▇▇▇in & Co. thereon, and (collectivelyiii) the unaudited consolidated balance sheet of Gain▇▇ ▇▇▇ its Subsidiaries as of November 30, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto1998, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereofrelated statements of income and cash flows for the eleven-month period then ended. To the knowledge of Matria, reserves, policy and contract claims and statutory liabilities) such financial statements have been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statementsunaudited financial statements, to the absence of notes required by Statutory Accounting Principles GAAP and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed ) and present fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.condition
Appears in 1 contract
Financial Matters. (a) The Borrower has prepared, and has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19982005, 19972004, and 19962003, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersLLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 19992006, and the related statements of income, stockholders' equity and cash flows and stockholders’ equity for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Borrower with the United States Securities and Exchange Commission and previously delivered by the Borrower to the Administrative Agent, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect, and since the date thereof neither the Borrower nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect.
(b) The Borrower, after giving effect to the consummation of the transactions contemplated hereby, (i) has capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) has assets with a fair saleable value, determined on a going concern basis, (y) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (z) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
(c) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements of each of the its Insurance Subsidiaries as of December 31, 19982005, 1997, 1996 2004 and 19952003, and for the fiscal years then ended, as applicable, and (ii) the Quarterly Statements of each of its Insurance Subsidiaries as of the end of the first fiscal quarter of 2006, and for the end of the fiscal quarter then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "“Historical Statutory Statements"”). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have been prepared in accordance with Statutory Accounting Principles SAP where required (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles SAP and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed and present fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting PrinciplesSAP, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Agent copies of (i) the audited consolidated balance sheets of the Borrower and its Subsidiaries as of December 31, 19981995, 19971994, 1993, and 19961992, and the related statements of income, stockholders' equity income and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June September 30, 19991996, and the related statements of income, stockholders' equity income and cash flows for the nine-month period then endedended (collectively, the "Historical Financial Statements"). Except as set forth in Schedule 4.11(a) attached hereto, such financial statements The Historical Financial Statements have been prepared in accordance with Generally Accepted Accounting Principles (subject, with respect to the unaudited financial statementsHistorical Financial Statements, to the absence of notes required by Generally Accepted Accounting Principles and to normal year-end audit adjustments) and present fairly the financial condition position of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above Historical Financial Statements and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due). Since December 31, 1995, there has been no Material Adverse Change, and, to the knowledge of the Borrower, no Material Adverse Change is threatened or reasonably likely to occur.
(b) In connection with the closing of the transactions contemplated by the Original Credit Agreement, the Borrower prepared, and furnished to the Agent copies of, annual projected balance sheets and statements of income and cash flows of the Borrower and its Subsidiaries for the eight-year period beginning January 1, 1995, giving effect to the transactions contemplated by the Original Credit Agreement (the "Projections"). In the opinion of the Borrower's management, the assumptions used in preparation of the Projections were reasonable when made. The Projections were prepared in good faith by the executive and financial personnel of the Borrower in light of the historical financial performance of the Borrower and the financial and operating condition of the Borrower at the time prepared and, at such time, represented a reasonable estimate of the future performance and financial condition of the Borrower and its Subsidiaries, subject to the uncertainties and approximations inherent in any projections.
(c) The Borrower has heretofore furnished to the Lender Agent copies of (i) the Annual Statements Statement of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995, and for the fiscal years year then ended, each as filed with the relevant Insurance Regulatory Authority, and (ii) the Quarterly Statement of each of the Insurance Subsidiaries as of September 30, 1996, and for the nine- month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the The Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilitiesStatutory Liabilities) have been prepared in accordance with Statutory Accounting Principles (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, to the absence of notes required by Statutory Accounting Principles and to normal year-end audit adjustments), were in compliance with applicable Requirements of Law when filed and present fairly the financial condition position of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilitiesStatutory Liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(cd) Each The investments of each of the Borrower Insurance Subsidiaries reflected in its most recently filed Annual Statement and Quarterly Statement comply in all material respects with all applicable requirements of the relevant Insurance Regulatory Authority and of any other Governmental Authority having jurisdiction over the investment of its funds. The amounts shown in the most recently filed Annual Statement and Quarterly Statement for each of the Insurance Subsidiaries for reserves, policy and contract claims, agents' balances and uncollected premiums and Statutory Liabilities were computed in accordance with commonly accepted actuarial standards consistently applied, were fairly stated in accordance with sound actuarial principles, were based on actuarial assumptions that were in accordance with or more stringent than those called for in the insurance policies and contracts and in the related reinsurance, co-insurance or similar contracts of such Insurance Subsidiaries, after giving effect to were computed on the consummation basis of assumptions consistent with those of the transactions contemplated herebypreceding fiscal year, (i) will have capital sufficient to carry on and meet the requirements of each relevant Insurance Regulatory Authority and of any other Governmental Authority having jurisdiction. Such reserves as established by each Insurance Subsidiary were, in the judgment of the Borrower, adequate as of such date for the payment by such Insurance Subsidiary of all of its businesses as conducted insurance benefits, losses, claims and as proposed to be conductedinvestigative expenses. Marketable securities and short-term investments reflected in each Insurance Subsidiary's most recently filed Annual Statement and Quarterly Statement are valued at cost, (ii) will have assets with a fair saleable amortized cost or market value, determined on a going concern basis, (A) not less than the amount as required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount by applicable Requirements of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they matureLaw.
Appears in 1 contract
Financial Matters. (a) The Borrower Parent has heretofore furnished to the Lender copies of (i) the audited consolidated balance sheets of the Borrower Parent and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related statements of income, cash flows and stockholders' equity and cash flows for the fiscal years then ended, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopersthereon, and (ii) the unaudited consolidated balance sheet of the Borrower Parent and its Subsidiaries as of June 30, 1999, and the related statements of income, cash flows and stockholders' equity and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly in all material respects the financial condition of the Borrower Parent and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower Parent and its Subsidiaries for the respective periods then ended. Except as fully reflected in (x) the most recent financial statements referred to above and the notes thereto, (y) the financial statements previously delivered pursuant to Section 5.1, or (z) any Form 8-K filed by the Parent with the Securities and Exchange Commission and previously delivered by the Parent to the Lender, there are were, as of the date of the most recent financial statements described in the immediately foregoing clause (x) or (y) or, if later, the date of the most recently delivered Form 8-K, no material liabilities or obligations with respect to the Borrower Parent or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due)) that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect, and since the date thereof neither the Parent nor any Subsidiary has incurred any liabilities or obligations that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect.
(b) The Borrower unaudited pro forma balance sheet of the Parent as of June 30, 1999, a copy of which has heretofore furnished been delivered to the Lender copies Lender, gives pro forma effect to the consummation of the Annual Statements initial extensions of each of the Insurance Subsidiaries as of December 31, 1998, 1997, 1996 and 1995credit made under this Agreement, and for the fiscal years then endedpayment of transaction fees and expenses related to the foregoing, each all as filed with the relevant Insurance Regulatory Authority if such events had occurred on such date (collectively, the "Historical Statutory StatementsPro Forma Balance Sheet"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) have The Pro Forma Balance Sheet has been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statements, subject to the absence of notes footnotes required by Statutory Accounting Principles GAAP and subject to normal year-end adjustments)) and, were subject to stated assumptions made in compliance with applicable Requirements of Law when filed good faith and present having a reasonable basis set forth therein, presents fairly the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and the results of operations, changes in capital and surplus and cash flow of the respective Insurance Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory liabilities), no Insurance Subsidiary had, Parent on an unaudited pro forma basis as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due) that, in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respects.
(c) Each of the Borrower and its Subsidiaries, set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
Appears in 1 contract
Financial Matters. (a) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the audited consolidated balance sheets of the Borrower CRA and its Subsidiaries as of December 31, 19981996, 19971995, and 19961994, and the related consolidated statements of income, stockholders' equity income and cash flows for the fiscal years then endedended December 31, 1996, 1995 and 1994, together with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower CRA and its Subsidiaries as of June 30, 19991997, and the related consolidated statements of income, stockholders' equity income and cash flows for the ninesix-month period then ended. Except as set forth in Schedule 4.11(a) attached hereto, such Such financial statements have been prepared in accordance with Generally Accepted Accounting Principles GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by Generally Accepted Accounting Principles GAAP and to normal year-end audit adjustments) and present fairly the financial condition of CRA and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of CRA and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to CRA or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(b) The Borrower has heretofore furnished to the Administrative Agent copies of (i) the audited consolidated balance sheets of OccuSystems and its Subsidiaries as of December 31, 1996, 1995, and 1994, and the related consolidated statements of income and cash flows for the fiscal years ended December 31, 1996, 1995 and 1994, together with the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP thereon, and (ii) the unaudited consolidated balance sheet of OccuSystems and its Subsidiaries as of June 30, 1997, and the related consolidated statements of income and cash flows for the six-month period then ended. Such financial statements have been prepared in accordance with GAAP (subject, with respect to the unaudited financial statements, to the absence of notes required by GAAP and to normal year-end adjustments) and present fairly the financial condition of OccuSystems and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of OccuSystems and its Subsidiaries for the respective periods then ended. Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to OccuSystems or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(c) The Borrower has heretofore furnished to the Administrative Agent copies of the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as of September 30, 1997 and December 31, 1996, the unaudited consolidated statements of income of the Borrower and its Subsidiaries for the three-month and nine-month periods ended September 30, 1997 and 1996, and the unaudited consolidated statements of cash flows of the Borrower and its Subsidiaries for the nine-month periods ended September 30, 1997 and 1996. Such financial statements have been prepared in accordance with GAAP (subject to the absence of notes required by GAAP and to normal year-end adjustments) and present fairly the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then endedended (and, as to the financial statements as of and for any period ended any date prior to September 30, 1997, giving pro forma effect to the consummation of the Reorganization). Except as fully reflected in the most recent financial statements referred to above and the notes thereto, there are no material liabilities or obligations with respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(bd) The Borrower has heretofore furnished to the Lender Administrative Agent copies of (i) the Annual Statements audited consolidated balance sheets of each of the Insurance PPS and its Subsidiaries as of December 31, 19981996 and 1995, 1997and the related consolidated statements of income and cash flows for the fiscal years ended December 31, 1996 and 1995, together with the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP thereon, and (ii) the unaudited consolidated balance sheet of PPS and its Subsidiaries as of September 30, 1997, and the related consolidated statements of income and cash flows for the fiscal years nine-month period then ended, each as filed with the relevant Insurance Regulatory Authority (collectively, the "Historical Statutory Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the Historical Statutory Statements (including, without limitation, the provisions made therein for investments and the valuation thereof, reserves, policy and contract claims and statutory liabilities) Such financial statements have been prepared in accordance with Statutory Accounting Principles GAAP (except as may be reflected in the notes thereto and subject, with respect to the Quarterly Statementsunaudited financial statements, to the absence of notes required by Statutory Accounting Principles GAAP and to normal year-end adjustments), were in compliance with applicable Requirements of Law when filed ) and present fairly the financial condition of the respective Insurance PPS and its Subsidiaries covered thereby on a consolidated basis as of the respective dates thereof and the consolidated results of operations, changes in capital operations of PPS and surplus and cash flow of the respective Insurance its Subsidiaries covered thereby for the respective periods then ended. Except for liabilities and obligations disclosed or provided for as fully reflected in the Historical Statutory Statements (includingmost recent financial statements referred to above and the notes thereto, without limitation, reserves, policy and contract claims and statutory liabilities), there are no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations with respect to PPS or any of its Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise and whether or not due).
(e) thatThe Borrower has heretofore furnished to the Administrative Agent copies of the audited balance sheets of About Health as of December 31, 1996 and 1995, and the related statements of income and cash flows for the fiscal years ended December 31, 1996 and 1995, together with the opinion of Coopers & ▇▇▇▇▇▇▇ L.L.P. thereon. Such financial statements have been prepared in accordance with Statutory Accounting Principles, would have been required to have been disclosed or provided GAAP and present fairly the financial condition of About Health as of the respective dates thereof and the results of operations of About Health for in such Historical Statutory Statements. All books of account of each Insurance Subsidiary fully and fairly disclose all of its material transactions, properties, assets, investments, liabilities and obligations, are in its possession and are true, correct and complete in all material respectsthe respective periods then ended.
(cf) Each The unaudited pro forma balance sheet of the Borrower as of December 31, 1997, a copy of which has heretofore been delivered to the Administrative Agent, gives pro forma effect to the consummation of the PPS Acquisition, the transactions contemplated by this Agreement and its Subsidiariesthe payment of all transaction fees and expenses related to the foregoing, all as if such events had occurred on such date (the "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet has been prepared in accordance with GAAP (subject to the absence of footnotes required by GAAP and subject to normal year-end adjustments) and, subject to stated assumptions made in good faith and having a reasonable basis set forth therein, presents fairly the financial condition of the Borrower on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of the transactions contemplated hereby, (i) will have capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii) will have assets with a fair saleable value, determined on a going concern basis, (A) not less than the amount required to pay the probable liability on its existing debts as they become absolute and matured and (B) greater than the total amount of its liabilities (including identified contingent liabilities, valued at the amount that can reasonably be expected to become absolute and matured), and (iii) will not intend to, and will not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they maturedescribed above.
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