SEC Filings

8-K
ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017
Entire Document
 


commitments and other fees required to be paid under the Commitment Letters prior to the date hereof have been paid in full. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV and Article V and the conditions set forth in Section 8.1 are satisfied at the Closing, Buyer has no reason to believe that any of the conditions to the Financing will not be satisfied or that the full amount of the Financing will not be available to Buyer on the Closing Date, and Buyer is not aware of the existence of any fact or event as of the date hereof that would be expected to cause such conditions to the Financing not to be satisfied or the full amount of the Financing not to be available.

6.8 Solvency. Assuming (a) the satisfaction of the conditions set forth in Section 8.1 and Section 8.2, (b) the representations and warranties set forth in Article IV and Article V are true and correct in all material respects (without giving effect to materiality, “Company Material Adverse Effect” or “Seller Material Adverse Effect” qualifiers), (c) that the Company and its Subsidiaries are Solvent immediately prior to the Closing, and (d) the financial projections or forecasts provided by or on behalf of Seller to Buyer prior to the date hereof have been prepared in good faith based on assumptions that were reasonable when made, and continue to be reasonable, then immediately after giving effect to the transactions contemplated by this Agreement, Buyer, the Company and each of their respective Subsidiaries shall be Solvent. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Company or the Company’s Subsidiaries. For purposes of this Agreement, “Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the Present Fair Salable Value of its assets will, as of such date, exceed all of its Liabilities, contingent or otherwise, as of such date, (b) 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 or will be engaged and (c) 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 timing of and amounts of cash to be payable on or in respect of its indebtedness, in each case, after giving effect to the transactions contemplated by this Agreement. The term “Solvency” shall have a correlative meaning. For purposes of the definition of “Solvent” (i) “debt” means liability on a “claim” and (ii) “claim” means (A) any right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured or (B) the right to an equitable remedy for a breach in performance if such breach gives rise to a right to payment, whether or not such equitable remedy is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured. “Present Fair Salable Value” means the amount that may be realized if the aggregate assets of such Person (including goodwill) are sold as an entirety with reasonable promptness in an arm’s length transaction under present conditions for the sale of comparable business enterprises. Buyer has on the date hereof, and shall maintain at all times through the Closing or the termination of this Agreement, sufficient cash, available lines of credit, or other sources of immediately available funds to enable it to pay the Termination Fee.

6.9 Investment Representation. Buyer is acquiring the Capital Stock for its own account with the present intention of holding such securities for investment purposes and not with a view to, or for sale in connection with, any distribution of such securities in violation of any federal or state securities laws. Buyer is an “accredited investor” as defined in Regulation D

 

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