Common use of Solvency Clause in Contracts

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 14 contracts

Samples: Underwriting Agreement (Domtar CORP), Underwriting Agreement (Domtar CORP), Underwriting Agreement (Trinity Industries Inc)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 8 contracts

Samples: Purchase Agreement, Purchase Agreement (Chaparral Energy, Inc.), Purchase Agreement (Oasis Petroleum Inc.)

Solvency. On the Closing Date and immediately after the Closing Date, the Company ( after giving effect to the issuance of the Securities and the consummation of the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus) Final Offering Memorandum, the Company will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the probable liabilities of the Company on its total existing debts and other liabilities (including contingent liabilities , computed at the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities (including such contingent liabilities , contingent obligations and commitments ) as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Final Offering Memorandum, the Company is has not incurring incurred, and does not propose to incur, debts or liabilities that would be beyond its ability to pay as such debts and other liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 8 contracts

Samples: Purchase Agreement (Sba Communications Corp), Purchase Agreement (Sba Communications Corp), Purchase Agreement (Sba Communications Corp)

Solvency. On No receiver or liquidator (or similar person) has been appointed in respect of the Company or any subsidiary of the Company or in respect of any part of the assets of the Company or any subsidiary of the Company, except in connection with non-performing assets held by the Company and immediately its subsidiaries; no resolution, order of any court, regulatory body, governmental body or otherwise, or petition or application for an order, has been passed, made or presented for the winding up of the Company or any subsidiary of the Company or for the protection of the Company or any such subsidiary from its creditors; and the Company has not, and no subsidiary of the Company has, stopped or suspended payments of its debts, become unable to pay its debts or otherwise become insolvent. Immediately after the Closing Date, completion of the Company offering of the Securities (after giving effect to the consummation of the offering and the issuance of the Securities and the other transactions related thereto as described in the Registration Statement Securities), the Time of Sale Information and the Prospectus) Company will be Solvent. As used in this paragraph herein, the term “Solvent” means, with respect to any person on a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such person is not less greater than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) of such person, (ii) the present fair salable value of the assets of such person is greater than the amount that will be required to pay the probable liabilities of such person on its debts as they become absolute and matured; matured and ( ii iii) the Company such person is able to realize upon its assets and pay its debts and other liabilities, including contingent obligations and commitments obligations, as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 7 contracts

Samples: Underwriting Agreement (Istar Inc.), Underwriting Agreement (Istar Inc.), Underwriting Agreement (Istar Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date date: (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 7 contracts

Samples: W. P. Carey Inc., W. P. Carey Inc., W. P. Carey Inc.

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the probable liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy capital.

Appears in 7 contracts

Samples: Purchase Agreement (Netflix Inc), Purchase Agreement (Netflix Inc), Senior Note (Netflix Inc)

Solvency. On and immediately after the Closing Date, the Company and each Guarantor (after giving effect to the issuance and sale of the Securities Securities, the issuance of the Guarantees and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 7 contracts

Samples: Purchase Agreement (Consolidated Communications Holdings, Inc.), Purchase Agreement (Callon Petroleum Co), Purchase Agreement (Matthews International Corp)

Solvency. On and immediately Immediately after the Closing Date consummation of the Offering (as defined in the Pricing Disclosure Package and the Offering Memorandum), the Company Partnership Entities, when taken together ( after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement “Consolidated Entity”), the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is Consolidated Entity are not less than the total amount required to pay the probable liabilities of the Company Consolidated Entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company Consolidated Entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation the sale of the issuance of the Securities Notes as contemplated by this Agreement, the Registration Statement Pricing Disclosure Package and the Offering Memorandum, the Time of Sale Information and the Prospectus, the Company Consolidated Entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; , (iv) the Company Consolidated Entity is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is Partnership Entities are engaged ; , and (v) none of the Company Partnership Entities is not a defendant in any civil action that would result in a judgment that the Company such Partnership Entity is or would become unable to satisfy . In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 6 contracts

Samples: Purchase Agreement (Tallgrass Energy, LP), Purchase Agreement (Tallgrass Energy Partners, LP), Purchase Agreement (Tallgrass Energy, LP)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus contemplated hereby) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 6 contracts

Samples: Service Corp International, Underwriting Agreement (Service Corporation International), Underwriting Agreement (Service Corporation International)

Solvency. On and immediately after the Closing Date, the Company and MPT (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and MPT is not less than the total amount required to pay the liabilities of the Company and MPT on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is and MPT are able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus, the Company is and MPT are not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is and MPT are not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is or MPT are engaged; and (v) neither the Company nor MPT is not a defendant in any civil action that would could reasonably be expected to result in a judgment that the Company or MPT is or would become be unable to satisfy.

Appears in 6 contracts

Samples: Underwriting Agreement (MPT Operating Partnership, L.P.), Underwriting Agreement (MPT Operating Partnership, L.P.), MPT Operating Partnership, L.P.

Solvency. On and immediately after the Closing Date consummation of the Transactions, the Company Issuers and the Guarantors on a consolidated basis (after giving effect to the issuance of the Securities Securities, the Transactions and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company Issuers and the Guarantors is not less than the total amount required to pay the liabilities of the Company Issuers and the Guarantors on its their combined total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is Issuers and the Guarantors are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, Agreement and the Registration Statement, use of proceeds therefrom as described in the Time of Sale Information and the Prospectus Offering Memorandum, the Company is Issuers and the Guarantors are not incurring debts or liabilities beyond its their ability to pay as such debts and liabilities mature; (iv) the Company is Issuers and the Guarantors are not engaged in any business or transaction, and does do not propose to engage in any business or transaction, for which its their property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is Issuers and their respective subsidiaries are engaged; and (v) the Company is Issuers and the Guarantors are not a defendant defendants in any civil action that would result in a judgment that the Company is Issuers and the Guarantors are or would become unable to satisfy.

Appears in 6 contracts

Samples: Restaurant Brands International Inc., Restaurant Brands International Inc., Purchase Agreement (Restaurant Brands International Inc.)

Solvency. On and immediately after the Closing Date, the Company ( and after giving effect to the issuance of the Securities and the consummation of the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus ) , as of the Closing Date, the Company will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities debts of the Company on its total existing debts and liabilities (including an amount of contingent liabilities , computed at the amount which, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is has not incurring incurred debts or liabilities and does not propose to incur debts that would be beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 6 contracts

Samples: Senior Subordinated Note (Denbury Resources Inc), Senior Subordinated Note (Denbury Resources Inc), Senior Subordinated Note (Denbury Resources Inc)

Solvency. On and immediately after the Closing Date, each of the Company and the Guarantor (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date date: (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 5 contracts

Samples: W. P. Carey Inc., Underwriting Agreement (W. P. Carey Inc.), Underwriting Agreement (W. P. Carey Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term "Solvent " means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 4 contracts

Samples: Amended and Restated Credit Agreement (Nebraska Book Co), Revolving Credit and Security Agreement (Imco Recycling Inc), Amended and Restated Credit Agreement (NBC Acquisition Corp)

Solvency. On and immediately after the Closing Date, the Company and each of the Guarantors (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and each of the Guarantors is not less than the total amount required to pay the liabilities of the Company and each of the Guarantors on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is and each of the Guarantors are able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus, the Company is and each of the Guarantors are not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is and each of the Guarantors are not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is or any of the Guarantors are engaged; and (v) neither the Company nor any of the Guarantors is not a defendant in any civil action that would could reasonably be expected to result in a judgment that the Company or any of the Guarantors is or would become be unable to satisfy.

Appears in 4 contracts

Samples: MPT Operating Partnership, L.P., MPT Operating Partnership, L.P., Medical Properties Trust Inc

Solvency. On and immediately after the Closing Date, the Company and the Guarantors (after giving effect to the issuance of Transactions to be consummated on or after the Securities date hereof and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is and the Guarantors are not less than the total amount required to pay the liabilities of the Company and the Guarantors on its their total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is and the Guarantors are not incurring debts or liabilities beyond its their ability to pay as such debts and liabilities mature; and ( iv iii) the Company is and the Guarantors are not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its their property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is and the Guarantors are engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 4 contracts

Samples: Purchase Agreement (Sanchez Energy Corp), Purchase Agreement (Sanchez Energy Corp), Purchase Agreement (Sanchez Energy Corp)

Solvency. On and immediately after the Closing Date, the Company and the Guarantors (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus Transactions) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; and (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Transactions, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 4 contracts

Samples: Underwriting Agreement (Encompass Health Corp), Underwriting Agreement (Encompass Health Corp), Underwriting Agreement (Encompass Health Corp)

Solvency. On and immediately after the Closing Date, the Company and the Guarantors ( on a consolidated basis after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such person is not less than the total amount required to pay the liabilities of the Company such person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company such person is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such person is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such person is engaged; and (v) the Company such person is not a defendant in any civil action that would result in a judgment that the Company such person is or would become unable to satisfy.

Appears in 4 contracts

Samples: Purchase Agreement (Budget Truck Rental LLC), Purchase Agreement (Avis Budget Group, Inc.), Purchase Agreement (Avis Budget Group, Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would reasonably be expected to result in a judgment that the Company is or would become unable to satisfy.

Appears in 4 contracts

Samples: Underwriting Agreement (Frontier Communications Corp), Underwriting Agreement (Frontier Communications Corp), Underwriting Agreement (Frontier Communications Corp)

Solvency. All indebtedness represented by the Securities is being incurred for proper purposes and in good faith. On and immediately after the Closing Date, the Company ( after giving pro forma effect to the issuance Offering and the use of proceeds therefrom described under the caption “Use of Proceeds” in the General Disclosure Package and the Offering Memorandum, each of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus Partnership Parties (i) will be Solvent Solvent (as hereinafter defined), (ii) will have sufficient capital for carrying on its business and (iii) will be able to pay its debts as they mature. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of each of the Company Partnership Parties is not less than the total amount required to pay the liabilities of each of the Company Partnership Parties on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) each of the Company Partnership Parties is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus General Disclosure Package and the Offering Memorandum, none of the Company Partnership Parties is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) none of the Company Partnership Parties is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such Partnership Party is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 3 contracts

Samples: Purchase Agreement (Memorial Production Partners LP), Purchase Agreement (Memorial Production Partners LP), Purchase Agreement (Memorial Production Partners LP)

Solvency. On Assuming (a) the most recent financial forecasts of the Seller and immediately after its Selling Subsidiaries made available to the Closing Date Buyer prior to the date hereof have been prepared in good faith based upon assumptions that were reasonable and (b) the accuracy of the representations and warranties contained in Article IV, the Company ( then, after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement Buyer shall be Solvent on a consolidated basis. After giving effect to the transactions contemplated by this Agreement, the Time Buyer shall have adequate capital to carry on its business. For purposes of Sale Information this Agreement, “Solvent” when used with respect to any Person, means that, as of any date of determination, (a) such Person will not have, or have access to, as of such date, an unreasonably small amount of capital for the business in which it is engaged and (b) such Person will be able to pay its debts as they become absolute and mature, in the ordinary course of business, taking into account the timing of and amounts of cash to be received by it and the Prospectus timing of and amounts of cash to be payable on or in respect of its indebtedness, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction each case, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration effect to the prevailing practice transactions contemplated by this Agreement. The term “Solvency” shall have a correlative meaning. For purposes of the definition of “Solvent” (i) “debt” means trade debt incurred in the industry ordinary course of business and Indebtedness incurred in which connection with the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy transactions contemplated by this Agreement.

Appears in 3 contracts

Samples: Share Purchase Agreement (Colony Financial, Inc.), Asset Purchase Agreement (Colony Financial, Inc.), Asset Purchase Agreement (Colony Financial, Inc.)

Solvency. On and immediately Immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities Conveyance and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus contemplated hereby) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the probable liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii ) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv ) the Company is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; engaged and ( v iv) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy . In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 3 contracts

Samples: Underwriting Agreement (PermRock Royalty Trust), Underwriting Agreement (Boaz Energy II, LLC), Underwriting Agreement (PermRock Royalty Trust)

Solvency. On and immediately after the Closing Date, the Company ( and after giving effect to the issuance of the Securities Notes and the other transactions related thereto Guarantees and the use of proceeds therefrom as described in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus ) , the Company and each of the Guarantors will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to any person on a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such person is not less than the total amount required to pay the liabilities of the Company such person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities Notes and the Guarantees as contemplated by this Agreement, the Registration Statement, Disclosure Package and the Time Prospectus and the use of Sale Information proceeds therefrom as described in the Disclosure Package and the Prospectus, the Company such person is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such person is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such person is engaged; and (v) the Company such person is not a defendant in any civil action that would result in a judgment that the Company such person is or would become unable to satisfy.

Appears in 3 contracts

Samples: Underwriting Agreement (Davita Healthcare Partners Inc.), Underwriting Agreement (Davita Inc), Underwriting Agreement (Davita Healthcare Partners Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Final Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Final Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 3 contracts

Samples: Underwriting Agreement (Hewlett Packard Enterprise Co), Hewlett Packard Enterprise Co, Underwriting Agreement (Hewlett Packard Enterprise Co)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would is reasonably likely to result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 3 contracts

Samples: Purchase Agreement (PDC Energy, Inc.), Purchase Agreement (PDC Energy, Inc.), Purchase Agreement (PDC Energy, Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 3 contracts

Samples: Purchase Agreement (Community Alternatives Pharmacy, Inc.), Purchase Agreement (Triumph Tools & Supply, L.L.C.), Purchase Agreement (Delta Petroleum Corp/Co)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 3 contracts

Samples: Senior Note (Agilent Technologies Inc), Underwriting Agreement (Agilent Technologies Inc), Underwriting Agreement (Cimarex Energy Co)

Solvency. On and immediately after the Closing Date, the Company and each Guarantor (after giving effect to the issuance and sale of the Securities and the application of the proceeds therefrom, the issuance of the Guarantees and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 3 contracts

Samples: Underwriting Agreement (Amcor PLC), Underwriting Agreement (Amcor PLC), Amcor PLC

Solvency. On and immediately after the Closing Date, the Company and its subsidiaries on a consolidated basis (after giving effect to the issuance of the Securities Notes and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities Notes as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 3 contracts

Samples: Underwriting Agreement (Corrections Corp of America), Corrections Corp of America, CoreCivic, Inc.

Solvency. On and immediately after the Closing Date, the Company Issuers and MPT (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company Issuers and MPT is not less than the total amount required to pay the liabilities of the Company Issuers and MPT on its their total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is Issuers and MPT are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus, the Company is Issuers and MPT are not incurring debts or liabilities beyond its their ability to pay as such debts and liabilities mature; (iv) the Company is Issuers and MPT are not engaged in any business or transaction, and does do not propose to engage in any business or transaction, for which its their property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is Issuers or MPT are engaged; and (v) neither the Company Issuers nor MPT is not a defendant in any civil action that would could reasonably be expected to result in a judgment that the Company Issuers or MPT is or would become be unable to satisfy.

Appears in 3 contracts

Samples: Underwriting Agreement (MPT Operating Partnership, L.P.), Underwriting Agreement (MPT Operating Partnership, L.P.), Underwriting Agreement (MPT Operating Partnership, L.P.)

Solvency. On and immediately after the Closing Date, the Company Issuers and each Guarantor (after giving effect to the issuance and sale of the Securities Securities, the issuance of the Guarantees and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 3 contracts

Samples: Purchase Agreement (Enviva Partners, LP), Purchase Agreement (Enviva Partners, LP), Purchase Agreement (Enviva Partners, LP)

Solvency. On and immediately after the Closing Date, the Company Partnership and its subsidiaries (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is Partnership and its subsidiaries are not less than the total amount required to pay the liabilities of the Company Partnership and its subsidiaries on its their total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is Partnership and its subsidiaries are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is Partnership and its subsidiaries are not incurring debts or liabilities beyond its their ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, Partnership and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is subsidiaries are not a defendant in any civil action that would result in a judgment that the Company is Partnership and its subsidiaries are or would become unable to satisfy.

Appears in 3 contracts

Samples: Purchase Agreement, Purchase Agreement (Antero Midstream GP LP), Purchase Agreement (Antero Midstream Partners LP)

Solvency. On and immediately after the Closing Date, the Company (after After giving effect to the issuance of transactions contemplated by the Securities Transaction Documents, (a) the fair value and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market salable value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities and each Restricted Subsidiary (excluding any Debt due from any Affiliate of the Company on or such Restricted Subsidiary, as the case may be) will each be in excess of the fair valuation of its total existing debts and liabilities (including all contingent liabilities ) as they become absolute and matured; ), ( ii b) the Company is and each Restricted Subsidiary will be able to realize upon its assets and pay its debts and or other liabilities, contingent obligations and commitments in the ordinary course as they mature mature, and become due in the normal course of business; ( iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv c) the Company is and each Restricted Subsidiary has capital not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry carry on its business and all business in which the Company is it proposes to be engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 2 contracts

Samples: Amendment to Note Purchase Agreement (Birmingham Steel Corp), Amendment to Note Purchase Agreement (Birmingham Steel Corp)

Solvency. On After the consummation of the transactions contemplated by this Agreement and immediately after the Closing Date Initial Public Offering, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged otherwise insolvent under the standards set forth in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Applicable Laws.

Appears in 2 contracts

Samples: Note Agreement (Solar Capital Ltd.), Note Agreement (Full Circle Capital Corp)

Solvency. On As of the date hereof and immediately after as of the Closing Date, immediately prior to and immediately following the Company (after giving effect to consummation of the issuance of the Securities Securities, the Issuers and the other transactions related thereto their Restricted Subsidiaries (as described defined in the Registration Statement, the Time of Sale Information Indenture) are and the Prospectus) will be Solvent Solvent on a consolidated basis. As used in this paragraph herein, the term “Solvent” means shall mean, with respect to for any person on a particular date, that on such date ( i A) the fair value of the property of such person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such person, (B) the present fair market salable value (or present fair saleable value) of the assets of the Company such person is not less than the total amount that will be required to pay the liabilities probable liability of the Company such person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , ( ii C) the Company is able to realize upon its assets such person does not intend to, and pay its does not believe that it will, incur debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its such person’s ability to pay as such debts and liabilities mature ; , ( iv D) the Company such person is not engaged in any a business or a transaction, and does is not propose about to engage in any a business or a transaction, for which its such person’s property would constitute an unreasonably small capital after giving and (E) such person is able to pay its debts as they become due consideration and payable. The Issuers understand that the Initial Purchasers and, for purposes of the opinions to be delivered to the prevailing practice in Initial Purchasers pursuant to Section 5 hereof, counsel to the industry in which Issuers and counsel to the Initial Purchasers will rely upon the accuracy and truth of the foregoing representations, and each Issuer hereby consents to such reliance. Any certificate signed by any officer of the Company or any of its subsidiaries and delivered to the Representatives or to counsel for the Initial Purchasers shall be deemed a representation and warranty by the Company to each Initial Purchaser as to the matters covered thereby. (ii) Each Initial Purchaser represents that it is engaged; a QIB and acknowledges that it is purchasing the Securities pursuant to a private sale exemption from registration under the Securities Act, and that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from the registration requirements of the Securities Act. Each Initial Purchaser, severally and not jointly, represents, warrants and covenants to the Issuers that: (a) Neither it, nor any person acting on its behalf, has solicited or will solicit offers for, or has offered or sold or will offer or sell, the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act, and it has solicited and will solicit offers for the Securities only from, and will offer and sell the Securities only to, (1) persons whom such Initial Purchaser reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to such Initial Purchaser that each such account is a QIB to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in reliance on the exemption from the registration requirements of the Securities Act pursuant to Rule 144A, or (2) persons who are not U.S. persons and who are outside the United States in reliance on, and in compliance with, the exemption from the registration requirements of the Securities Act provided by Regulation S. (b) With respect to offers and sales outside the United States, such Initial Purchaser has offered the Securities and will offer and sell the Securities (1) as part of its distribution at any time and ( v 2) otherwise until 40 days after the Company is not a defendant later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Rule 903 of Regulation S or another exemption from the registration requirements of the Securities Act. Accordingly, neither such Initial Purchasers nor any person acting on their behalf has engaged or will engage in any civil action directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such persons have complied and will comply with the offering restrictions requirements of Regulation S. Terms used in this Section l(ii)(b) have the meanings given to them by Regulation S. (c) Each Initial Purchaser severally agrees that, at or prior to confirmation of a sale of Securities pursuant to Regulation S it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that would result in purchases Securities from it or through it during the restricted period a judgment that confirmation or notice to substantially the Company is or would become unable to satisfy. following effect:

Appears in 2 contracts

Samples: Purchase Agreement (Alere Inc.), Senior Subordinated Note (Alere Inc.)

Solvency. On As of the date hereof, and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement contemplated by this Agreement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market saleable value (or present fair saleable value) of the Company's assets of the Company is not less greater than the total amount required to pay the liabilities of the Company on its Company's total existing debts and liabilities indebtedness (including contingent liabilities) liabilities which are reasonably likely to become due), as they become it matures and as it becomes absolute and matured; (ii) the Company is able transactions contemplated hereby are being effectuated without intent to realize upon its assets and pay its debts and other liabilities hinder, contingent obligations and commitments as they mature and become due in delay or defraud present or future creditors of the normal course of business Company; (iii) assuming consummation of it is the issuance of Company's intention that it will maintain the Securities above-referenced solvent financial condition, after giving effect to the debt incurred hereunder, as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, long as the Company is not incurring debts obligated to Holder under this Agreement or liabilities beyond its ability to pay as such debts in any other manner whatsoever; and liabilities mature; (iv) the Company is not engaged in any business or transaction has sufficient capital to carry on its previous operations and the Business as they are now conducted, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to consummate the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy transactions contemplated herein.

Appears in 2 contracts

Samples: Loan Agreement (Startec Global Communications Corp), Startec Global Communications Corp

Solvency. On Assuming (i) satisfaction of the conditions to Parent and immediately after Merger Sub’s obligation to consummate the Closing Date Merger as set forth herein, (ii) the accuracy of the representations and warranties of the Company set forth in this Agreement and in any certificate delivered pursuant to the terms of this Agreement, ( iii) the Company’s financial statements fairly present the consolidated financial condition of the Company and its subsidiaries as of the end of the periods covered thereby and the consolidated results of operations of the Company and its subsidiaries for the periods covered thereby and (iv) any estimates, projections or forecasts of the Company and its subsidiaries have been prepared in good faith based upon assumptions that were and continue to be reasonable, immediately following the Effective Time, and after giving effect to any change in the issuance assets and liabilities of the Securities Surviving Corporation as a result of the Merger and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, including the Registration Statement Debt Financing, the Time Surviving Corporation will be Solvent. For the purpose of Sale Information the preceding sentence, “Solvent” when used with respect to any Person, means that, as of any date of determination, such Person will (a) be able to pay its debts as they become due and will own property having a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all its contingent liabilities) and (b) have adequate capital to carry on its businesses. No transfer of property is being made and no obligation is being incurred in connection with the Merger and the Prospectus other transactions contemplated by this Agreement, including the Company is not incurring debts Debt Financing, with the intent to hinder, delay or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) defraud any present or future creditors of the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Surviving Corporation.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Rite Aid Corp), Agreement and Plan of Merger (Walgreens Boots Alliance, Inc.)

Solvency. On Assuming (i) the representations and immediately after the Closing Date, warranties of the Company in this Agreement are true and correct as of immediately prior to the Merger Closing on the Merger Closing Date and ( ii) that the most recent financial forecasts relating to the Company made available to Parent by the Company prior to the date of this Agreement have been prepared in good faith and on assumptions that were reasonable at the time such forecasts were prepared then immediately after giving effect to the issuance of the Securities Merger and the other transactions related thereto as described in Transactions (including the Registration Statement Financing and the payment of the aggregate Merger Consideration, any repayment or refinancing of debt of the Company, the Time payment of Sale Information all other amounts required to be paid in connection with the consummation of the Transactions and the Prospectus) payment of all related fees and expenses), the Surviving Corporation and the Subsidiaries taken as a whole will be Solvent Solvent as of the Effective Time and immediately after the consummation of the Merger and the other Transactions. As used in For the purposes of this paragraph Agreement, the term “Solvent” means, as of any date of determination and with respect to a particular date the Surviving Corporation and its Subsidiaries, that on such date (i) the present fair market value (or present fair saleable value) Fair Value and Present Fair Salable Value of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on Surviving Corporation and its total existing debts Subsidiaries taken as a whole exceed their Stated Liabilities and liabilities (including contingent liabilities) as they become absolute and matured Identified Contingent Liabilities; (ii) the Company is able to realize upon Surviving Corporation and its assets Subsidiaries taken as a whole do not have Unreasonably Small Capital; and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities Surviving Corporation and its Subsidiaries taken as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as such debts they mature, where the terms “Fair Value”, “Present Fair Salable Value”, “Stated Liabilities”, “Identified Contingent Liabilities”, “Will be able to pay their Stated Liabilities and liabilities Identified Contingent Liabilities as they mature ; (iv) the Company is not engaged in any business or transaction , and does “Do not propose have Unreasonably Small Capital”, have the respective meanings given to engage such terms in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration the form of solvency certificate attached as Exhibit E-1 to the prevailing practice Debt Financing Commitment as in effect on the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy date hereof.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (CD&R Associates VIII, Ltd.), Agreement and Plan of Merger (Emergency Medical Services CORP)

Solvency. On and immediately after Assuming that the transactions contemplated by this Agreement to be consummated at the Closing Date were effected on the date hereof, and the Company (after giving effect execution and delivery of the Purchase Agreement and the consummation of the transactions contemplated thereby immediately prior to the issuance execution of this Agreement, as of the Securities and the other transactions related thereto as described in the Registration Statement date hereof, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date ( i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii a) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in due, (b) the normal course of business; Company owns property which has a fair saleable value greater than the amounts required to pay its debts ( iii) assuming consummation including a reasonable estimate of the issuance amount of all contingent liabilities) and (c) the Securities as Company has adequate capital to carry on its businesses. No transfer of property is being or will be made and no obligation is being or will be incurred in connection with the transactions contemplated by this Agreement Agreement or the Purchase Agreement with the intent to hinder, the Registration Statement, the Time delay or defraud either present or future creditors of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy other Person.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Constellation Energy Group Inc), Agreement and Plan of Merger (Midamerican Energy Holdings Co /New/)

Solvency. On and immediately after Assuming the Closing Date satisfaction of the conditions to the Company’s obligation to consummate the Merger, the Company and each of its Subsidiaries, taken as a whole, will not, ( after giving effect a) immediately prior to the issuance closing of the Securities New NewPage Term Loan Facility and the other transactions related thereto as described in payment of the Registration Statement, Recapitalization Dividend and (b) immediately prior to the Effective Time of Sale Information (assuming that the Company did not enter into the New NewPage Term Loan Facility and pay the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date Recapitalization Dividend): (i) be insolvent (either because its financial condition is such that the present sum of its debts, including contingent and other liabilities, is greater than the fair market value ( of its assets or present because the fair saleable value) value of the its assets of the Company is not less than the total amount required to pay the liabilities of the Company its probable liability on its total existing debts and liabilities ( debts, including contingent and other liabilities ) , as they become absolute and matured mature); (ii) have unreasonably small capital for the Company operation of the businesses in which it is able engaged or proposed to realize upon its assets and pay its debts be engaged; or (iii) have incurred debts, or be expected to incur debts, including contingent and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay them as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would they become unable to satisfy due.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Verso Paper Corp.), Agreement and Plan of Merger (NewPage Holdings Inc.)

Solvency. On At and immediately after the Closing Date each Time of Delivery (as defined in Section 4 hereof), the Company (after giving effect to the issuance of the Securities ADSs, the application of the proceeds therefrom and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information Pricing Prospectus and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; and (iii) assuming consummation of the issuance of the Securities ADSs as contemplated by this Agreement, the Deposit Agreement, the Registration Statement, the Time of Sale Information Pricing Prospectus and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy. ;

Appears in 2 contracts

Samples: Underwriting Agreement (KE Holdings Inc.), Underwriting Agreement (KE Holdings Inc.)

Solvency. On At and immediately after following the Closing Date, the Company ( Effective Time and after giving effect to all the issuance Transactions (including any debt or equity financings being entered into in connection therewith), none of Parent, the Surviving Corporation or any subsidiary of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) Surviving Corporation will be Solvent insolvent. As used Without limiting the generality of the foregoing, at and immediately following the Effective Time and after giving effect to all the Transactions (including any debt or equity financings being entered into in this paragraph, the term “Solvent” means connection therewith), with respect to a particular date each of Parent, that on such date the Surviving Corporation and each subsidiary of the Surviving Corporation: (i) the present sum of such entity’s debts will not be greater than all of such entity’s assets or property at a fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured valuation; (ii) the Company is able present fair saleable value of such entity’s assets will not be less than the amount that will be required to realize upon pay such entity’s probable liability on its assets and pay its existing debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business absolute or matured; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement such entity will not intend to incur, the Registration Statement or believe or reasonably should believe that it would incur, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities they become due or as they mature; and (iv) such entity will not be engaged and will not be about to engage in a business or transaction for which the Company is not engaged remaining assets or property of such entity are unreasonably small in any relation to such business or transaction, and does such entity will not propose to engage in any business or transaction, for which its property would constitute have an unreasonably small amount of capital after giving due consideration to for the prevailing practice in operation of the industry businesses in which it is engaged or proposed to be engaged. Parent and Acquisition Sub are not entering into this Agreement or the Transactions with the intent to hinder, delay or defraud either current or future creditors of the Company or of any of its Subsidiaries. Any term or phrase used but not defined in this Section 4.11, including “insolvent,” “fair valuation,” “fair saleable value,” “liabilities,” and “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged ; ” shall have the meaning generally determined with respect to such term or phrase in accordance with applicable Laws governing determinations of the insolvency of debtors, including the Uniform Fraudulent Transfer Act, as approved by the National Conference of Commissioners on Uniform State Laws in 1984 and (v) any version thereof adopted by any state whose Laws apply to Parent, the Company is not a defendant Surviving Corporation or any subsidiary of the Surviving Corporation on or after the Closing, the Uniform Fraudulent Conveyance Act, as approved by the National Conference of Commissioners on Uniform State Laws in 1918 and any civil action that would result in a judgment that version thereof adopted by any state whose Laws apply to Parent, the Company is Surviving Corporation or would become unable to satisfy. any subsidiary of the Surviving Corporation on or after the Closing and the U.S. Bankruptcy Code, Title 11 of the U.S.C.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Brookfield Asset Management Inc.), Agreement and Plan of Merger (Rouse Properties, Inc.)

Solvency. On and At the Closing immediately after giving effect to the Closing Date, the Company transactions contemplated by this Agreement (after giving effect to all financings to be undertaken by Parent and its affiliates in connection therewith and with the issuance Merger), the Company will be Solvent (assuming for the purposes of this representation that the Company was Solvent immediately prior to Closing and assuming the accuracy as of the Securities Closing of the representations and warranties contained in Article III hereof) and the other transactions related thereto use of the proceeds of the financing as described in the Registration Statement, the Time of Sale Information and the Prospectus) contemplated hereby will be Solvent in compliance with the relevant provisions of the DGCL. As used in this paragraph For purposes of the preceding sentence, the term “Solvent” means, with respect to a particular date, that on such date shall mean that: (i) the present fair market value (or present fair saleable value) value of the assets of the Company is not less is, on the date of determination, greater than the sum of the total amount required to pay the of liabilities of the Company on its as of such date, contingent liabilities set forth in Section 3.6 of the Company Disclosure Schedule or Note 18 of the Company Balance Sheet, and total existing debts and liabilities (including contingent liabilities) as they become absolute and matured par value of the Company’s issued outstanding capital stock; (ii) the Company is able to realize upon pay all of its assets liabilities as such liabilities become absolute and pay its debts mature; and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming the Company does not have unreasonably small capital for conducting the business theretofore or proposed to be conducted by it following consummation of the issuance Merger (and the term “Solvency” shall have a corresponding meaning). No transfer of property is being made and no obligation is being incurred in connection with the Securities as transactions contemplated by this Agreement Agreement or the Commitment Letters with the intent to hinder, delay or defraud any present or future creditors of the Registration Statement, the Time of Sale Information Surviving Corporation and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Subsidiaries.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Encore Medical, L.P.), Agreement and Plan of Merger (Encore Medical Corp)

Solvency. On Each of the Company Entities, when taken together (the “Consolidated Entity”), is, and immediately after the Closing Date, the Company Date (after giving effect to the issuance of the Securities Notes and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum) will be be, Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is Consolidated Entity are not less than the total amount required to pay the probable liabilities of the Company Consolidated Entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company Consolidated Entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation the sale of the issuance of the Securities Notes as contemplated by this Agreement, the Registration Statement Pricing Disclosure Package and the Offering Memorandum, the Time of Sale Information and the Prospectus, the Company Consolidated Entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; , (iv) the Company Consolidated Entity is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the such Company Entity is engaged ; , and (v) none of the Company Entities is not a defendant in any civil action that would result in a judgment that the Company is Entities are or would become unable to satisfy . In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 2 contracts

Samples: Purchase Agreement (Rice Energy Inc.), Purchase Agreement (Rice Energy Inc.)

Solvency. On and immediately Immediately after the Closing Date consummation of the Exchange, the Company Obligors, when taken together ( after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement “Consolidated Entity”), the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is Consolidated Entity are not less than the total amount required to pay the probable liabilities of the Company Consolidated Entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company Consolidated Entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company Consolidated Entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; , (iv) the Company Consolidated Entity is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company Consolidated Entity is engaged ; and , (v) none of the Company Obligors is not a defendant in any civil action that would result in a judgment that the Company such Obligor is or would become unable to satisfy , (vi) the Obligors are otherwise solvent within the meaning given to that term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and conveyances and (vii) none of the Obligors is otherwise an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada). In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 2 contracts

Samples: Exchange Agreement (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)

Solvency. On and immediately Immediately after the Closing Date, the Company (after giving effect to consummation of the issuance of the Offered Securities and the other transactions related thereto as described in contemplated by the Registration Statement Call Spread Confirmations, the Time of Sale Information and the Prospectus) Company will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is are not less than the total amount required to pay the probable liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation the sale of the issuance of the Offered Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus Final Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; , (iv) the Company is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; , and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy . In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Appears in 2 contracts

Samples: Purchase Agreement (Enphase Energy, Inc.), Convertible Senior Note (Enphase Energy, Inc.)

Solvency. On and immediately after the Closing each Settlement Date, the Company (after giving effect to the issuance and sale of the Securities Shares and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on each such date date: (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities Shares as contemplated by this Agreement, the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: W. P. Carey Inc., W. P. Carey Inc.

Solvency. On and immediately after the Closing Date, each of the Company and each of the Guarantors (after giving effect to the issuance of the Securities (and the Guarantees) and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities (and the Guarantees) as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, the Company such entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (v) such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such entity is engaged; and ( v vi) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Oasis Petroleum Inc.), Oasis Petroleum Inc.

Solvency. On and immediately after the Closing Date, each of the Company and the Guarantors (after giving effect to the issuance of the Securities and Notes, the other transactions related thereto application of the proceeds therefrom as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company or any Guarantor is not less than the total amount required to pay the liabilities of the Company or such Guarantor on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company and each Guarantor is able to realize upon its assets and pay its debts debts, and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation of the issuance of the Securities Notes as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, none of the Company or any Guarantor is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature ; (iv) the Company is not engaged in any business or transaction , and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) neither the Company nor any of the Guarantors is not a defendant in any civil action that would result in a judgment that over-indebted or otherwise insolvent within the meaning of such insolvency law as may be applicable to the Company is or would become unable to satisfy any of the Guarantors, and (vi) no proceedings have been commenced for purposes of, and no judgment has been rendered for, the administration, liquidation, bankruptcy or winding-up of the Company or any of its material subsidiaries.

Appears in 2 contracts

Samples: Purchase Agreement (Central European Media Enterprises LTD), Purchase Agreement (Central European Media Enterprises LTD)

Solvency. On and immediately after the Closing Date, each of the Company and the Guarantors taken as a whole (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and the Guarantors is not less than the total amount required to pay the liabilities of the Company and the Guarantors on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company or such Guarantor is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Indenture, the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus, the Company or such Guarantor does not have any knowledge that it is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company or such Guarantor is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or such Guarantor is engaged; and (v) the Company or such Guarantor is not a defendant in any civil action that would could reasonably be expected to result in a final judgment that the Company or such Guarantor is or would become unable to satisfy.

Appears in 2 contracts

Samples: Senior Note (Jarden Corp), Underwriting Agreement (Jarden Corp)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus Refinancing) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the consolidated assets of the Company is not less than the total amount required to pay the consolidated liabilities of the Company on its total existing debts and liabilities (including contingent liabilities ) as they become absolute and matured ); (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute have an unreasonably small amount of capital after giving due consideration with which to the prevailing practice in the industry in which the Company is engaged conduct its business; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Avaya Inc), Purchase Agreement (Avaya Inc)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities Offered Shares and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on each such date date: (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities Offered Shares as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: W. P. Carey Inc., W. P. Carey Inc.

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Underwriting Agreement (Carpenter Technology Corp), Underwriting Agreement (Twilio Inc)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Final Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Final Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Northern Oil & Gas, Inc.), Purchase Agreement (Northern Oil & Gas, Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto Refinancing (as described defined in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum) and the other Transactions as described in each of the Time of Sale Information and the Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the probable liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 2 contracts

Samples: Purchase Agreement (McClatchy Co), Purchase Agreement (McClatchy Co)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and its subsidiaries taken as a whole on a going concern basis is not less than the total amount required to pay the liabilities sum of the Company on its their total existing debts and liabilities (including identified contingent liabilities) taken as they become absolute and matured a whole; (ii) the Company is and its subsidiaries on a consolidated basis are able to realize upon its assets and pay its their debts and other liabilities, contingent obligations and commitments liabilities as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 2 contracts

Samples: Underwriting Agreement (Expedia, Inc.), Underwriting Agreement (Expedia, Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Final Offering Circular) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Final Offering Circular, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Chaparral Energy, Inc.), Purchase Agreement (Chaparral Energy, Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would could reasonably be expected to result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (New Gold Inc. /FI), Purchase Agreement (New Gold Inc. /FI)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would is reasonably likely to result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Penson Worldwide Inc), Purchase Agreement (Penson Worldwide Inc)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Offering Memorandum and the Prospectus on a consolidated basis) will be Solvent. As used in this paragraph, the term "Solvent " means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus Offering Memorandum, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Trinity Marine Products, Inc.), Purchase Agreement (Trinity Industries Inc)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, Agreement and the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant otherwise insolvent under the standards set forth in any civil action that would result in a judgment that applicable laws. Any certificate signed by an officer of the Company is and delivered to the Representative or would become unable to satisfy counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.

Appears in 2 contracts

Samples: Underwriting Agreement (Tenneco Inc), Underwriting Agreement (Tenneco Inc)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto Shares as described in the Registration Statement, the Time of Sale Information and the Prospectus Information) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute due and matured; (ii) the Company is able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities Shares as contemplated by this Agreement, the Registration Statement, Agreement and the Time of Sale Information and the Prospectus Information, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 2 contracts

Samples: Subscription Agreement (Durect Corp), Subscription Agreement (Neurocrine Biosciences Inc)

Solvency. On and immediately after the Closing Date, the Company and each Guarantor (after giving effect to the issuance and sale of the Securities and the issuance of the related Guarantees and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the related Guarantees as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such entity is engaged; and (v) the Company such entity is not a defendant in any civil action that would be reasonably likely to result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Us Concrete Inc), Purchase Agreement (Us Concrete Inc)

Solvency. On and immediately after the Closing Date, the Company and each Guarantor (after giving effect to the issuance and sale of the Securities Securities, the issuance of the Guarantees, the Transactions and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Nine Energy Service, Inc.), Gartner Inc

Solvency. On and immediately after the Closing Date, the Company and each Guarantor (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to any person as of a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such person is not less than the total amount required to pay the liabilities of the Company such person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company such person is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such person is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such person is engaged; and (v) the Company such person is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Underwriting Agreement (Penn Virginia Corp), Underwriting Agreement (Penn Virginia Corp)

Solvency. On and immediately after the Closing Date, the Company and each Parent (after giving effect to the issuance of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company or the Parent, as applicable, is not less than the total amount required to pay the liabilities of the Company or the Parent, as applicable, on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company or the Parent, as applicable, is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company or the Parent, as applicable, is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company or the Parent, as applicable, is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or the Parent, as applicable, is engaged; and (v) the Company or the Parent, as applicable, is not a defendant in any civil action that would result in a judgment that the Company or the Parent, as applicable, is or would become unable to satisfy.

Appears in 2 contracts

Samples: Underwriting Agreement (Columbia Property Trust, Inc.), Underwriting Agreement (Columbia Property Trust, Inc.)

Solvency. On and immediately after the Closing Date, the Company and its Subsidiaries taken as a whole (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities probable liability of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company is such entity does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities as they mature; (iv) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, transaction for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Navistar International Corp), Purchase Agreement (Navistar International Corp)

Solvency. On and immediately after the Closing Date, the Company and the Guarantors ( on a consolidated basis after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term "Solvent " means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such person is not less than the total amount required to pay the liabilities of the Company such person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company such person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum, the Company such person is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company such person is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such person is engaged; and (v) the Company such person is not a defendant in any civil action that would result in a judgment that the Company such person is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Avis Budget Group, Inc.), Purchase Agreement (Avis Budget Group, Inc.)

Solvency. On and immediately after the Closing Date, the Company and the Guarantors ( taken together on a consolidated basis after giving effect to the issuance and sale of the Securities Securities, the issuance of the Guarantees and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and the Guarantors is not less than the total amount required to pay the liabilities of the Company and the Guarantors on its their total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is and the Guarantors are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Underwriting Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is and the Guarantors are not incurring debts or liabilities beyond its their ability to pay as such debts and liabilities mature; (iv) the Company is and the Guarantors are not engaged in any business or transaction, and does do not propose to engage in any business or transaction, for which its their property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is and the Guarantors are engaged; and (v) the Company is and the Guarantors are not a defendant defendants in any civil action that would result in a judgment that the Company is and the Guarantors are or would become unable to satisfy.

Appears in 2 contracts

Samples: Underwriting Agreement (Rosetta Resources Inc.), Underwriting Agreement (Rosetta Resources Inc.)

Solvency. On and immediately after the Closing Date, the Company and the Guarantors on a consolidated basis (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Hanesbrands Inc.), Purchase Agreement (Hanesbrands Inc.)

Solvency. On and immediately after the Closing Date, the Company Partnership (after giving effect to the issuance of the Securities Notes and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Final Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company Partnership is not less than the total amount required to pay the liabilities of the Company Partnership on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured due; (ii) in light of its current financial circumstances, the Company Partnership is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities Notes as contemplated by this Agreement, the Registration Statement, the Time of Sale Information General Disclosure Package and the Final Prospectus, the Company Partnership, by virtue of the issuance of the Notes, is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company Partnership is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company Partnership is engaged; and (v) the Company Partnership is not a defendant in any civil action that would result in a judgment that the Company Partnership is or would become unable to satisfy.

Appears in 2 contracts

Samples: Underwriting Agreement (Dynagas Finance Inc.), Underwriting Agreement (Dynagas Finance Inc.)

Solvency. On and immediately after the Closing Date, the Company Partnership (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information Memorandum and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company Partnership is not less than the total amount required to pay the liabilities of the Company Partnership on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured mature; (ii) the Company Partnership is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Memorandum and the Prospectus Offering Memorandum, the Company Partnership is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company Partnership is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company Partnership is engaged; and (v) the Company Partnership is not a defendant in any civil action that would result in a judgment that the Company Partnership is or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Penn Virginia Resource Partners L P), Purchase Agreement (PVR Partners, L. P.)

Solvency. On and immediately after the Closing Date, the Company Partnership Parties, taken as a whole, (after giving effect to the issuance of the Securities and the Guarantees and the other transactions related thereto as described in the Registration Statement, each of the Time of Sale Information and the Prospectus Offering Memorandum) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company Partnership Parties, taken as a whole, is not less than the total amount required to pay the liabilities liability of the Company Partnership Parties, taken as a whole, on its their total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is Partnership Parties, taken as a whole, are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities and the Guarantees as contemplated by this Agreement , the Registration Statement , the Time of Sale Information and the Prospectus Offering Memorandum, the Company is Partnership Parties, taken as a whole, are not incurring debts or liabilities beyond its their ability to pay as such debts and liabilities mature; (iv) the Company is Partnership Parties, taken as a whole, are not engaged in any business or transaction, and does do not propose to engage in any business or transaction, for which its their property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is Partnership Parties, taken as a whole, are engaged; and (v) the Company is Partnership Parties, taken as a whole, are not a defendant in any civil action that would result in a judgment that the Company is Partnership Parties, taken as a whole, are or would become unable to satisfy.

Appears in 2 contracts

Samples: Purchase Agreement (Global Partners Lp), Global Partners Lp

Solvency. On and immediately after the relevant Closing Date, each of the Company and the Parent (after giving effect to the issuance of the Purchased Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus thereto) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and with respect to a particular entity, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company such entity is not less than the total amount required to pay the liabilities of the Company such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Purchased Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company such entity is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; ( iv iii) the Company such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such entity is engaged; and ( v iv) the Company such entity is not a defendant in any civil action that would result in a judgment that the Company such entity is or would become unable to satisfy.

Appears in 2 contracts

Samples: Master Investment Agreement (Terrestar Corp), Master Investment Agreement (Terrestar Corp)

Solvency. On and immediately after the Closing Date, the Company ( after giving pro forma effect to the issuance of the Securities Offering and the other transactions related thereto as use of proceeds therefrom described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus , the Company and each Guarantor (i) will be Solvent Solvent (as hereinafter defined), (ii) will have sufficient capital for carrying on its business and (iii) will be able to pay its debts as they mature. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and each Guarantor is not less than the total amount required to pay the liabilities of the Company and each Guarantor on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company and each Guarantor is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, Agreement and the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus, neither the Company nor any Guarantor is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) neither the Company nor any Guarantor is not engaged in any business or transaction, and does not propose has no current plans to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or any Guarantor is engaged; and (v) neither the Company nor any Guarantor is not a defendant otherwise insolvent under the standards set forth in any civil action that would result in a judgment that the Company is or would become unable to satisfy applicable laws.

Appears in 2 contracts

Samples: Underwriting Agreement (Bonanza Creek Energy, Inc.), Underwriting Agreement (Bonanza Creek Energy, Inc.)

Solvency. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would reasonably be expected to result in a judgment that the Company is or would become unable to satisfy.

Appears in 2 contracts

Samples: Underwriting Agreement (Frontier Communications Corp), Underwriting Agreement (Frontier Communications Corp)

Solvency. On and immediately after the Closing Date, the Company ( after giving effect to the issuance of the Securities Units and the other transactions related thereto as described in application of the Registration Statement, the Time of Sale Information and the Prospectus proceeds therefrom) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, means that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) (which liabilities are calculated for purposes of this representation in the manner used in the preparation of the Company’s consolidated balance sheet) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business business (assuming the ability to refinance existing obligations); (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature mature (assuming the ability to refinance existing obligations); and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute it has unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy capital.

Appears in 2 contracts

Samples: Subscription Agreement (Unumprovident Corp), Subscription Agreement (Unumprovident Corp)

Solvency. On and immediately after i) The fair value of the Closing Date, property of the Company (after giving effect to is greater than the issuance total amount of liabilities, including, without limitation, contingent liabilities, of the Securities and the other transactions related thereto as described in the Registration Statement Company, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date ( i ii) the present fair market salable value (or present fair saleable value) of the assets of the Company is not less than the total amount that will be required to pay the liabilities probable liability of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , ( ii iii) the Company is able does not intend to, and does not believe that it will, incur debts or liabilities beyond the Company’s ability to realize upon its assets and pay its such debts and other liabilities, contingent obligations and commitments liabilities as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any a business or a transaction, and does is not propose about to engage in any a business or a transaction, for which its the Company’s property would constitute an unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy capital.

Appears in 2 contracts

Samples: Note Purchase Agreement (GBS Enterprises Inc), Note Purchase Agreement (GBS Enterprises Inc)

Solvency. On and immediately after the Closing Date, the Company (after After giving effect to the issuance consummation of the Securities transactions contemplated by this Agreement, the Ancillary Agreements (including the Series B Purchase Agreement and the other transactions related thereto as described Ikaria Merger Agreement), and the financing documents entered into in connection with the Registration Statement Acquisition and the Ikaria Merger (whether pursuant to the Debt Financing, the Time of Sale Information Equity Financing Agreement or otherwise), and the Prospectus application of the proceeds thereof and the payment of all legal, accounting and other fees related thereto, Holdco (for the purposes of this Section 5.11, including all of its Subsidiaries immediately following the Acquisition) will be Solvent solvent. As used in For the purposes of this paragraph Section 5.11, the term “ Solvent solvent means, with respect to a particular date, that on such date means that: ( i a) the fair value of the property of Holdco is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of Holdco; (b) the present fair market saleable value (or present fair saleable value) of the assets of the Company Holdco is not less than the total amount which will be required to pay the liabilities probable liability of the Company Holdco on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured mature; ( ii c) the Company Holdco is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature and become due in the normal course of business; ( iii d) assuming consummation of the issuance of the Securities as contemplated by this Agreement Holdco does not intend to, the Registration Statement and does not believe that it will, the Time of Sale Information and the Prospectus, the Company is not incurring incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; and ( iv e) the Company Holdco is not engaged in any a business or transaction, and does not propose nor is it about to engage in any a business or transaction, for which its Holdco’s property would constitute unreasonably small capital capital, after giving due consideration to the prevailing practice in the industry in which the Company Holdco is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 1 contract

Samples: Ikaria, Inc.

Solvency. On and immediately after the Closing Date, the Company (after After giving effect to the issuance of transactions contemplated hereby and by the Securities and the other transactions related thereto as described in the Registration Statement Related Documents, the Time Company is not "insolvent", nor will the Company's incurrence of Sale Information and obligations to repay the Prospectus) will be Solvent. As used in Loans render the Company "insolvent." For the purposes of this paragraph Section 6.15, the term “Solvent” means, with respect to a particular date, that on such date corporation is "insolvent" if (i) the "present fair market value salable value" ( or present fair saleable value as defined below) of the its assets of the Company is not less than the total amount that will be required to pay the liabilities of the Company its probable liability on its total existing debts and other liabilities (including contingent liabilities) as they become absolute and matured; (ii) the property of the Company is able constitutes unreasonably small capital for the Company to realize upon carry out its assets business as now conducted and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in proposed to be conducted including the normal course capital needs of business the Company; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring intends to, or believes that it will, incur debts or liabilities beyond its ability to pay as such debts as they mature (taking into account the timing and liabilities mature amounts of cash to be received by the Company and amounts to be payable on or in respect of debt of the Company), or the cash available to the Company after taking into account all other anticipated uses of the cash of the Company is anticipated to be insufficient to pay all such amounts on or in respect of debt of the Company when such amounts are required to be paid; or (iv) the Company is not engaged believes that final judgments against the Company in actions for money damages will be rendered at a time when, or in an amount such that, the Company 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 business such actions and the earliest reasonable time (as determined in the Company's best judgment) at which such judgments might be rendered), or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration the cash available to the prevailing practice Company after taking into account all other anticipated uses of the cash of the Company (including the payments on or in respect of debt referred to in clause (iii) of this Section 6.15), is anticipated to be insufficient to pay all such judgments promptly in accordance with their terms. For purposes of this Section 6.15, the following terms have the following meanings: (x) the term "debts" includes any legal liability, whether matured or unmatured, liquidated, absolute, fixed or contingent, (y) the term "present fair salable value" of the Company's assets means the amount which may be realized, within a reasonable time (as determined in the industry in which the Company is engaged; Company's best judgment), either through collection or sale of such assets at their regular market value and ( v z) the Company term "regular market value" means the amount which a capable and diligent businessman (as determined in the Company's best judgment) could obtain for the property in question within a reasonable time (as determined in the Company's best judgment) from an interested buyer who is not a defendant willing to purchase under ordinary selling conditions (as determined in any civil action that would result in a judgment that the Company is or would become unable to satisfy Company's best judgment).

Appears in 1 contract

Samples: Pioneer Financial Services Inc /De

Solvency. All indebtedness represented by the Notes is being incurred for proper purposes and in good faith. On and immediately after the Closing Date, the Company ( after giving pro forma effect to the issuance of the Securities Offering and the other transactions related thereto use of proceeds therefrom as described indicated in the Registration Statement, “Use of Proceeds” section of the Time of Sale Information Document and Final Offering Circular, the Prospectus Company (i) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities Notes as contemplated by this Agreement, the Registration Statement, Agreement and the Time of Sale Information Document and the Prospectus Final Offering Circular, the Company is has not incurring incurred debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 1 contract

Samples: Purchase Agreement (Parallel Petroleum Corp)

Solvency. All indebtedness represented by the Offered Securities is being incurred for the purposes set forth in the General Disclosure Package under the heading “Use of Proceeds.” On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent solvent. As used in this paragraph, the term Solvent solvent” means, with respect to a particular date, that on such date (i) the present fair market value ( or present fair saleable value) of the assets of the Company and each of its subsidiaries is not less than the total amount required to pay the probable liabilities of the Company and each of such subsidiaries on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company is and each of its subsidiaries are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation the sale of the issuance of the Offered Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus General Disclosure Package, each of the Company and the subsidiaries is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities as they mature ; , and (iv) each of the Company and its subsidiaries is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which each of the Company and such subsidiaries is engaged ; . In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and (v) circumstances existing at such time, represents the Company is not a defendant in any civil action amount that would result in a judgment that the Company is can reasonably be expected to become an actual or would become unable to satisfy matured liability.

Appears in 1 contract

Samples: Purchase Agreement (Brigham Exploration Co)

Solvency. All indebtedness represented by the Offered Securities is being incurred for the purposes set forth in the General Disclosure Package under the heading “Use of Proceeds”. On and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent solvent. As used in this paragraph, the term Solvent solvent” means, with respect to a particular date, that on such date (i) the present fair market value ( or present fair saleable value) of the assets of the Company and each of its subsidiaries is not less than the total amount required to pay the probable liabilities of the Company and each of such subsidiaries on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , (ii) the Company is and each of its subsidiaries are able to realize upon its their assets and pay its their debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business ; , (iii) assuming consummation the sale of the issuance of the Offered Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus General Disclosure Package, each of the Company and the subsidiaries is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities as they mature ; , and (iv) each of the Company and its subsidiaries is not engaged in any business or transaction, and does is not propose about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which each of the Company and such subsidiaries is engaged ; . In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and (v) circumstances existing at such time, represents the Company is not a defendant in any civil action amount that would result in a judgment that the Company is can reasonably be expected to become an actual or would become unable to satisfy matured liability.

Appears in 1 contract

Samples: Purchase Agreement (Brigham Exploration Co)

Solvency. All indebtedness represented by the Securities is being incurred for proper purposes and in good faith. On and immediately after the Closing Date, the Company ( after giving pro forma effect to the issuance of the Securities Offering and the other transactions related thereto as use of proceeds therefrom described under the caption “Use of Proceeds” in the Registration Statement General Disclosure Package and the Offering Memorandum, the Time of Sale Information Company and the Prospectus each Guarantor (i) will be Solvent Solvent (as hereinafter defined), (ii) will have sufficient capital for carrying on its business and (iii) will be able to pay its debts as they mature. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and each Guarantor is not less than the total amount required to pay the liabilities of the Company and each Guarantor on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company and each Guarantor is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus General Disclosure Package and the Offering Memorandum, neither the Company nor any Guarantor is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) neither the Company nor any Guarantor is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or any Guarantor is engaged; and (v) neither the Company nor any Guarantor is not a defendant otherwise insolvent under the standards set forth in any civil action that would result in a judgment that the Company is or would become unable to satisfy applicable laws.

Appears in 1 contract

Samples: Purchase Agreement (Interval Leisure Group, Inc.)

Solvency. All indebtedness represented by the Securities is being incurred for proper purposes and in good faith. On and immediately after the Closing Date, the Company ( after giving pro forma effect to the issuance purchase of the Securities by the Initial Purchasers pursuant to this Agreement and the other transactions related thereto as use of proceeds therefrom described under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus Offering Memorandum, each of the Partnership Parties (i) will be Solvent Solvent (as hereinafter defined), (ii) will have sufficient capital for carrying on its business and (iii) will be able to pay its debts as they mature. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of each of the Company Partnership Parties is not less than the total amount required to pay the liabilities of each of the Company Partnership Parties on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) each of the Company Partnership Parties is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information Agreement and the Prospectus General Disclosure Package and the Offering Memorandum, none of the Company Partnership Parties is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) none of the Company Partnership Parties is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company such Partnership Party is engaged ; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy .

Appears in 1 contract

Samples: Purchase Agreement (Memorial Production Partners LP)

Solvency. All indebtedness represented by the Securities is being incurred for proper purposes and in good faith. On and immediately after the Closing Date, the Company ( after giving pro forma effect to the issuance of the Securities this offering and the other transactions related thereto use of proceeds therefrom as described indicated in the Registration Statement, “Use of Proceeds” section of the Time of Sale Information and the Prospectus Offering Memorandum, the Company and each Guarantor (i) will be Solvent solvent, (ii) will have sufficient capital for carrying on its business and (iii) will be able to pay its debts as they mature. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company and each Guarantor is not less than the total amount required to pay the liabilities of the Company and each Guarantor on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company and each Guarantor is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement Securities, the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any Guarantor is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) neither the Company nor any Guarantor is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or any Guarantor is engaged; and (v) neither the Company nor any Guarantor is not a defendant otherwise insolvent under the standards set forth in any civil action that would result in a judgment that the Company is or would become unable to satisfy applicable laws.

Appears in 1 contract

Samples: Akoustis Technologies, Inc.

Solvency. On and immediately after As of the Closing Date, the Company ( after giving effect to the issuance of the Securities Closing and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that any indebtedness being incurred on such date in connection herewith, and assuming that all representations of Parent set forth in this Agreement and the certificate delivered pursuant to Section 8.2(c) are true and correct in all respects, Purchaser and Purchaser’s Subsidiaries, on a consolidated basis, will not (i) be insolvent (either because its financial condition is such that the sum of its liabilities (including a reasonable estimate of the amount of all contingent liabilities) is greater than the fair value of its assets, or because the present fair market saleable value (or present fair saleable value) of the its assets of the Company is not will be less than the total amount required to pay the liabilities of the Company its probable liability on its total existing debts as they become absolute and liabilities matured in the usual course of business), ( including contingent liabilities ii) have unreasonably small capital with which to engage in its business or (iii) have incurred or plan to incur debts beyond its ability to pay as they become absolute and matured ; (ii) . Purchaser is not entering into this Agreement with the actual intent to hinder, delay or defraud either present or future creditors of itself or of the Company is able to realize upon or any of its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in or the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Company’s Subsidiaries.

Appears in 1 contract

Samples: Securities Purchase Agreement (Ebay Inc)

Solvency. On and immediately after As of the Closing Date, the Company ( and after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement contemplated by this Agreement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) value of the Companies' assets of the Company is not less greater than the total amount required to pay the liabilities of Companies' total indebtedness (contingent or otherwise), and is greater than the Company on its total existing debts amount that will be required to pay such indebtedness as it matures and liabilities (including contingent liabilities) as they become it becomes absolute and matured; (ii) the Company is able transactions contemplated hereby are being effectuated without intent to realize upon its assets and pay its debts and other liabilities hinder, contingent obligations and commitments as they mature and become due in the normal course delay or defraud present or future creditors of business any Company; (iii) assuming consummation of it is the issuance of Companies' intention that the Securities Companies will maintain the above-referenced solvent financial condition for the Companies in the aggregate, giving effect to the debt incurred hereunder, as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the long as any Company is not incurring debts obligated to Holder under this Agreement or liabilities beyond its ability to pay as such debts in any other manner whatsoever; and liabilities mature; (iv) each Company has sufficient capital to carry on its previous operations and the Company is not engaged in any business or transaction Business as they are conducted on the Closing Date, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to consummate the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy transactions contemplated herein.

Appears in 1 contract

Samples: Simula Inc

Solvency. On and immediately after As of the Closing Date, each of the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information its Subsidiaries is and the Prospectus) will be Solvent. As used in this paragraph herein, the term “Solvent” means, with respect to the Company on a particular date, that on such date date, in each case including the fair value of the Company’s Intellectual Property, ( i a) the fair value of the property of the Company is greater than the total amount of liabilities, including contingent liabilities, of the Company; (b) the present fair market salable value (or present fair saleable value) of the assets of the Company is not less than the total amount that will be required to pay the liabilities probable liability of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; ( ii c) the Company is able to realize upon its assets does not intend to, and pay its debts and other liabilities does not believe that it will, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring incur debts or liabilities beyond its the Company’s ability to pay as such debts and liabilities mature; ( iv d) the Company is not engaged in any a business or transaction, and does is not propose about to engage in any a business or transaction, for which its the Company’s property would constitute an unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and ( v e) as of the date hereof, the Company is not a defendant “insolvent” within the meaning of Section 101(32) of the United States Bankruptcy Code (11 U.S.C. § 101, et. seq), as amended from time to time (the “Bankruptcy Code”). The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that can be reasonably be expected to become an actual or matured liability. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no Knowledge of any civil action facts or circumstances which lead it to believe that would result in a judgment that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. The SEC Reports set forth as of the date thereof all outstanding secured and unsecured indebtedness of the Company is or would become unable any Subsidiary, or for which the Company or any Subsidiary has commitments, which are required to satisfy be disclosed in such SEC Reports.

Appears in 1 contract

Samples: Securities Purchase Agreement (Kun Run Biotechnology, Inc.)

Solvency. On and immediately after As of the Closing, (a) assuming that the conditions to the obligation of Buyer to consummate the Closing Date set forth in Article VII have been satisfied or waived, (b) compliance by the Company with the covenants contained in this Agreement and the other Ancillary Agreements to which the Company is a party and ( c) that the most recent financial forecasts of the Company and its Subsidiaries made available to Buyer have been prepared in good faith based upon assumption that were and continue to be reasonable, then immediately following the Closing and after giving effect to the issuance all of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as Transactions contemplated by this Agreement, the Registration Statement payment of the aggregate consideration to which the Sellers are entitled under Article II, funding of any obligations of the Company and its Subsidiaries which become due or payable by the Company and its Subsidiaries in connection with, or as a result of, the Time Closing and payment of Sale Information all related fees and the Prospectus expenses, the Company and its Subsidiaries, taken as a whole, will not: (i) be insolvent (either because its financial condition is not incurring debts such that the sum of its debts, including contingent and other Liabilities, is greater than the fair market value of its assets or liabilities because the fair saleable value of its assets is less than the amount required to pay its probable Liability on its existing debts, including contingent and other Liabilities, as they mature), (ii) have unreasonably small capital for the operation of the businesses in which it is engaged or (iii) have incurred debts, or be expected to incur debts, including contingent and other Liabilities, beyond its ability to pay them as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would they become unable to satisfy due.

Appears in 1 contract

Samples: Equity Purchase Agreement (Americold Realty Trust)

Solvency. On and immediately after As of the Closing, (a) assuming that the conditions to the obligation of the Buyers to consummate the Closing Date set forth in Article VII have been satisfied or waived, (b) compliance by the Companies with the covenants contained in this Agreement and the other Ancillary Agreements to which the Companies are a party and (c) that the most recent financial forecasts of the Company ( Entities made available to the Buyers have been prepared in good faith based upon assumption that were and continue to be reasonable, then immediately following the Closing and after giving effect to the issuance all of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as Transactions contemplated by this Agreement, the Registration Statement payment of the aggregate consideration to which the Sellers are entitled under Article II, funding of any obligations of the Company Entities which become due or payable by the Company Entities in connection with, or as a result of, the Time Closing and payment of Sale Information all related fees and the Prospectus expenses, the Company Entities, taken as a whole, will not: (i) be insolvent (either because its financial condition is not incurring debts such that the sum of its debts, including contingent and other Liabilities, is greater than the fair market value of its assets or liabilities because the fair saleable value of its assets is less than the amount required to pay its probable Liability on its existing debts, including contingent and other Liabilities, as they mature), (ii) have unreasonably small capital for the operation of the businesses in which it is engaged or (iii) have incurred debts, or be expected to incur debts, including contingent and other Liabilities, beyond its ability to pay them as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would they become unable to satisfy due.

Appears in 1 contract

Samples: Transaction Agreement (Americold Realty Trust)

Solvency. On As of the Effective Time, assuming (i) that the representations and warranties set forth in Article 2 are true and correct in all material respects, (ii) that the most recent financial forecasts for the Company made available to Parent prior to the date hereof have been prepared in good faith based upon assumptions that were and continue to be reasonable, (iii) satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligation to consummate the Merger and the transactions contemplated by this Agreement and (iv) that, immediately after prior to the Closing Date Effective Time, without giving effect to the Financing, the Company and its Subsidiaries taken as a whole are Solvent ( as defined below), immediately after giving effect to the issuance all of the Securities transactions contemplated by this Agreement, including the payment of the Merger Consideration, and the Option Consideration and the consideration in respect of the Restricted Stock under Section 1.8 and any other transactions related thereto as described repayment or refinancing of debt that may be contemplated in the Registration Statement Merger, and payment of all related fees and expenses, the Time of Sale Information Surviving Corporation and the Prospectus) its Subsidiaries on a consolidated basis will be Solvent. As used in For purposes of this paragraph Section 3.10, the term “Solvent” means, with respect to a particular date, that on such date means (i) (a) the present fair market value (or present fair saleable value) Fair Value and Present Fair Saleable Value of the assets of such person and its subsidiaries taken as a whole exceed their Stated Liabilities and the Company is Identified Contingent Liabilities; (b) such person and its subsidiaries taken as a whole do not less than the total amount required have Unreasonably Small Capital; and (c) such person and its subsidiaries taken as a whole will be able to pay the liabilities of the Company on its total existing debts their Stated Liabilities and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments Identified Contingent Liabilities as they mature and become due in the normal course of business; ( iii ii) assuming consummation of the issuance of the Securities as contemplated by this Agreement “Fair Value”, the Registration Statement “Present Fair Saleable Value”, the Time of Sale Information and the Prospectus “Stated Liabilities”, the Company is not incurring debts or liabilities beyond its ability “Identified Contingent Liabilities”, “will be able to pay their Stated Liabilities and Identified Contingent Liabilities as such debts they mature” and liabilities mature; (iv) “Do not have Unreasonably Small Capital” each have the Company is not engaged meanings specified in any business or transaction, and does not propose Annex I to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration Exhibit D to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Debt Commitment Letter.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Ply Gem Holdings Inc)

Solvency. On As of the date hereof and immediately after as of the Closing Date, immediately prior to and immediately following the Company (after giving effect to consummation of the issuance of the Securities Securities, the Issuers and the other transactions related thereto their Restricted Subsidiaries (as described defined in the Registration Statement, the Time of Sale Information Indenture) are and the Prospectus) will be Solvent Solvent on a consolidated basis. As used in this paragraph herein, the term “Solvent” means shall mean, with respect to for any person on a particular date, that on such date ( i A) the fair value of the property of such person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such person, (B) the present fair market salable value (or present fair saleable value) of the assets of the Company such person is not less than the total amount that will be required to pay the liabilities probable liability of the Company such person on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured ; , ( ii C) the Company is able to realize upon its assets such person does not intend to, and pay its does not believe that it will, incur debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its such person’s ability to pay as such debts and liabilities mature ; , ( iv D) the Company such person is not engaged in any a business or a transaction, and does is not propose about to engage in any a business or a transaction, for which its such person’s property would constitute an unreasonably small capital after giving and (E) such person is able to pay its debts as they become due consideration and payable. The Issuers understand that the Initial Purchasers and, for purposes of the opinions to be delivered to the prevailing practice in Initial Purchasers pursuant to Section 5 hereof, counsel to the industry in which Issuers and counsel to the Initial Purchasers will rely upon the accuracy and truth of the foregoing representations, and each Issuer hereby consents to such reliance. Any certificate signed by any officer of the Company or any of its subsidiaries and delivered to the Representatives or to counsel for the Initial Purchasers shall be deemed a representation and warranty by the Company to each Initial Purchaser as to the matters covered thereby. (ii) Each Initial Purchaser represents that it is engaged; a QIB and acknowledges that it is purchasing the Securities pursuant to a private sale exemption from registration under the Securities Act, and that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from the registration requirements of the Securities Act. Each Initial Purchaser, severally and not jointly, represents, warrants and covenants to the Issuers that: (a) Neither it, nor any person acting on its behalf, has solicited or will solicit offers for, or has offered or sold or will offer or sell, the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act, and it has solicited and will solicit offers for the Securities only from, and will offer and sell the Securities only to, (1) persons whom such Initial Purchaser reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to such Initial Purchaser that each such account is a QIB to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in reliance on the exemption from the registration requirements of the Securities Act pursuant to Rule 144A, or (2) persons who are not U.S. persons and who are outside the United States in reliance on, and in compliance with, the exemption from the registration requirements of the Securities Act provided by Regulation S. (b) With respect to offers and sales outside the United States, such Initial Purchaser has offered the Securities and will offer and sell the Securities (1) as part of its distribution at any time and ( v 2) otherwise until 40 days after the Company is not a defendant later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Rule 903 of Regulation S or another exemption from the registration requirements of the Securities Act. Accordingly, neither such Initial Purchasers nor any person acting on their behalf has engaged or will engage in any civil action directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such persons have complied and will comply with the offering restrictions requirements of Regulation S. Terms used in this Section 1(ii)(b) have the meanings given to them by Regulation S. (c) Each Initial Purchaser severally agrees that, at or prior to confirmation of a sale of Securities pursuant to Regulation S it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that would result in purchases Securities from it or through it during the restricted period a judgment that confirmation or notice to substantially the Company is or would become unable to satisfy. following effect:

Appears in 1 contract

Samples: Purchase Agreement (Inverness Medical Innovations Inc)

Solvency. On As of the date hereof, and immediately after the Closing Date, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement contemplated by this Agreement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market saleable value (or present fair saleable value) of the Company's assets of the Company is not less greater than the total amount required to pay the liabilities of the Company on its Company's total existing debts and liabilities indebtedness (including contingent liabilities) liabilities which are reasonably likely to become due), as they become it matures and as it becomes absolute and matured; (ii) the Company is able transactions contemplated hereby are being effectuated without intent to realize upon its assets and pay its debts and other liabilities hinder, contingent obligations and commitments as they mature and become due in delay or defraud present or future creditors of the normal course of business Company; (iii) assuming consummation of it is the issuance of Company's intention that it will maintain the Securities above-referenced solvent financial condition, after giving effect to the debt incurred hereunder, as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, long as the Company is not incurring debts obligated to Holders under this Agreement or liabilities beyond its ability to pay as such debts in any other manner whatsoever; and liabilities mature; (iv) the Company is not engaged in any business or transaction has sufficient capital to carry on its previous operations and the Business as they are now conducted, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to consummate the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy transactions contemplated herein.

Appears in 1 contract

Samples: Loan Agreement (Startec Global Communications Corp)

Solvency. On and immediately after As of the Closing Date date hereof, the Company is not insolvent ( as such term is defined both in the Uniform Fraudulent Transfer Act as in effect on the date hereof and is used in Section 548(B)(ii)(I) of the Bankruptcy Reform Act of 1978, as amended to the date hereof) and, after giving effect to the issuance or as a result of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as transactions contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus will not be insolvent. In addition, the Company (i) is not incurring engaged, and is not about to engage, in a business or transaction for which any property remaining thereafter would constitute unreasonably small capital, (ii) does not intend or propose to incur debts or liabilities that would be beyond its ability to pay as such debts they matured, and liabilities mature; ( iv iii) the sale of the 3 Common Stock was not made to an insider under an employment contract outside the ordinary course of business. However, the Company is not engaged in any business or transaction, experiencing losses and does not propose anticipates that it will need to engage in any business or transaction, for which its property would constitute unreasonably small raise additional capital after giving due consideration to the prevailing practice at some point in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable future to satisfy continue to operate its business consistent with its current business plan.

Appears in 1 contract

Samples: Share Purchase Agreement (Vaxgen Inc)

Solvency. On and immediately after As of the Closing Date date hereof, the Company (after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement Company, the Time of Sale Information and the Prospectus) will be on a consolidated basis is Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date date and entity, that on such date (i) the present fair market value ( or and present fair saleable value) of the assets of the Company Company, on a consolidated basis, is not less than the total amount required to pay the liabilities probable liability of the Company Company, on a consolidated basis, of its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company Company, on a consolidated basis, is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities Placement Shares as contemplated by this Agreement Agreement and the Prospectuses, the Registration Statement Company, the Time of Sale Information and the Prospectus on a consolidated basis, the Company is does not incurring have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company Company, on a consolidated basis, is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged capital; and (v) the Company Company, on a consolidated basis, is not a defendant in any civil action that would could reasonably be expected to result in a judgment that the Company Company, on a consolidated basis, is or would become unable to satisfy.

Appears in 1 contract

Samples: Equity Distribution Agreement (B2gold Corp)

Solvency. On Assuming (a) the Specified Representations are true and correct in all material respects and (b) that the estimates, projections, and forecasts provided to Purchaser and its representatives have been prepared in good faith based on reasonable assumptions, as of the Closing and immediately after the Closing Date, the Company ( after giving effect to the issuance of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in contemplated by this paragraph, the term “Solvent” means, with respect to a particular date, that on such date Agreement (i) the present fair market value (or present amount of the “fair saleable value ) of the assets Assets of the Company is not less than Group will exceed the total amount required to pay the value of all liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured Group; (ii) no member of the Company Group will have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged; and (iii) each member of the Company Group will be able to realize upon its assets and pay its debts liabilities, including contingent and other liabilities as disclosed, as they mature. For purposes of the foregoing, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including contingent and other liabilities, contingent obligations and commitments as they mature mature” means that such Person will be able to generate enough cash from investment, operations, asset dispositions, refinancing, or a combination thereof, to meet its obligations as they become due. No transfer of property is being made by Purchaser and become due no obligation is being incurred by Purchaser in connection with the normal course of business; (iii) assuming consummation of the issuance of the Securities as transactions contemplated by this Agreement, Agreement with the Registration Statement, the Time intent to defraud either present or future creditors of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Group.

Appears in 1 contract

Samples: Share Purchase and Sale Agreement (NuStar Energy L.P.)

Solvency. On Assuming (a) the accuracy and immediately after completeness of the Closing Date representations and warranties in Article 3, and (b) that the most recent financial statements included in an Annual Report on Form 10-K filed by the Company ( with the SEC present fairly in all material respects the consolidated financial position of the Company and the Company Subsidiaries as at the end of the periods covered thereby and the consolidated results of operations of the Company and the Company Subsidiaries for the periods covered thereby, then immediately following the Acceptance Time and after giving effect to the issuance consummation of the Securities and the other transactions related thereto as described in the Registration Statement Offer, the Time of Sale Information Company and the Prospectus) its Subsidiaries, taken as a whole, will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date not: (i) be insolvent (either because its financial condition is such that the present sum of its debts, including contingent and other liabilities, is greater than the fair market value ( of its assets or present because the fair saleable value) value of the its assets of the Company is not less than the total amount required to pay the liabilities of the Company its probable liability on its total existing debts and liabilities ( debts, including contingent and other liabilities ) , as they become absolute and matured mature); (ii) have unreasonably small capital for the Company operation of the businesses in which it is able engaged or proposed to realize upon its assets and pay its debts be engaged; or (iii) have incurred debts, or intend to incur debts, including contingent and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would as they become unable to satisfy. due. Table of Contents

Appears in 1 contract

Samples: Agreement and Plan of Merger (NCI, Inc.)

Solvency. On Assuming (i) the representations and immediately after warranties of the Company in this Agreement are true and correct as of the Closing Date, (ii) that each of the representations and warranties in this Section 4.4 would be true and correct immediately before giving effect to the transactions contemplated by this Agreement and (iii) that the most recent financial forecasts relating to the Company ( made available to the Parent by the Company prior to the date of this Agreement have been prepared in good faith and on assumptions that were reasonable at the time such forecasts were prepared, are reasonable as of the date hereof and will continue to be reasonable as of the Closing, then immediately after giving effect to the issuance transactions contemplated by this Agreement (including the consideration for the Merger and any financings to be undertaken in connection therewith), (a) none of the Securities and the other transactions related thereto Company or any Company Subsidiary will have incurred debts beyond its ability to pay such debts as described in the Registration Statement they mature or become due, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date ( i b) the then present fair market salable value (or present fair saleable value) of the assets of each of the Company is and the Company Subsidiaries will not less than exceed the total amount that will be required to pay the liabilities of the Company on its total existing debts and probable liabilities (including the probable amount of all contingent liabilities) and its debts as they become absolute and matured ; , ( ii c) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation each of the issuance Company and the Company Subsidiaries, in each case at a fair valuation, will exceed its respective debts (including the probable amount of all contingent liabilities) and (d) none of the Securities Company or any Company Subsidiary will have unreasonably small capital to carry on its respective business as presently conducted or as proposed to be conducted. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement Agreement at the direction or otherwise on behalf of the Parent or the Sub with the intent to hinder, the Registration Statement, the Time delay or defraud any present or future creditors of Sale Information and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the any Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy Subsidiary.

Appears in 1 contract

Samples: Agreement (Fidelity National Financial, Inc.)

Solvency. On Assuming that (a) the conditions to Parent’s obligation to consummate the Offer and immediately after the Closing Date Merger as set forth herein have been satisfied or waived, (b) the representations and warranties of the Company in Article IV are accurate, ( c) the Required Information fairly presents the consolidated financial condition of the Company and its subsidiaries as at the end of the periods covered thereby and the consolidated results of earnings of the Company and its subsidiaries for the periods covered thereby and (d) any financial forecasts of the Company made available to Parent as of the date hereof have been prepared in good faith upon assumptions that were reasonable at such time (it being understood that the Company is not making any representations or warranties with respect thereto as a result of the assumptions in this Section 5.12), then immediately following the Effective Time and after giving effect to the issuance all of the Securities and the other transactions related thereto as described in the Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, including the Registration Statement Financing, the Time payment of Sale Information the aggregate Offer Price and Merger Consideration, and the Prospectus consideration in respect of the Company Stock Options, Company RSUs and Company Restricted Shares under Section 3.2, funding of any obligations of the Surviving Corporation or its subsidiaries which become due or payable by the Surviving Corporation and its subsidiaries in connection with, or as a result of, the Company Merger and payment of all related fees and expenses, the Surviving Corporation and each of its subsidiaries, on a consolidated basis, will not (i) be insolvent (either because its financial condition is not incurring such that the sum of its debts, including contingent and other liabilities, is greater than the fair market value of its assets or because the fair saleable value of its assets is less than the amount required to pay its probable liability on its existing debts, including contingent and other liabilities, as they mature); (ii) have unreasonably small capital for the operation of the business in which it is engaged or proposed to be engaged; or (iii) have incurred debts or liabilities beyond its ability to pay them as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would they become unable to satisfy due.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Diamond Resorts International, Inc.)