Closing Date Balance Sheet a. Not later than sixty (60) days after the Closing, Seller shall prepare a balance sheet of the Company as of the close of business on the Closing Date (the "Closing Date Balance Sheet"), in accordance with United States generally accepted accounting principles ("GAAP") applied in a manner consistent with the accounting principles and practices applied in the preparation of the Financial Statements (as defined herein). Seller agrees to use reasonable efforts to cause the Closing Date Balance Sheet to be prepared and delivered to Purchaser within sixty (60) days after the Closing, unless such inability to deliver the Closing Date Balance Sheet is as a result of Purchaser's failure to give Seller reasonable access to the necessary books, records and/or personnel, in which event the requirement to deliver the Closing Date Balance Sheet shall be tolled until Seller is given reasonable access to the necessary documentation or personnel. The date of delivery of the Closing Date Balance Sheet to Purchaser is referred to herein as the "Delivery Date".
b. Without charge by Purchaser, Purchaser shall cause its and the Company's employees to cooperate reasonably and on a timely basis and to assist Seller with the preparation of the Closing Date Balance Sheet, and shall make reasonably available to Seller and its authorized representatives the books, records, and personnel of the Company which Seller reasonably requires in order to prepare and deliver the Closing Date Balance Sheet. Purchaser and Seller shall, throughout the entire period from the date of this Agreement to the Delivery Date, meet and discuss any and all financial and business matters relating to such process and the preparation of the Closing Date Balance Sheet, and Seller shall make available its work papers for confidential inspection and review by Purchaser and Purchaser's accountants; provided, however, that Seller may omit or redact information that contains competitively sensitive information concerning Seller's or any of Seller's Affiliate's unrelated operations, contracts, customers, pricing, costs, or related matters.
Litigation and Contingent Liabilities No litigation (including derivative actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the Company’s knowledge, threatened against any Loan Party which might reasonably be expected to have a Material Adverse Effect, except as set forth in Schedule 9.6. Other than any liability incident to such litigation or proceedings, no Loan Party has any material contingent liabilities not listed on Schedule 9.6 or permitted by Section 11.1.
Closing Date Certificate Borrower shall have delivered to Administrative Agent an originally executed Closing Date Certificate, together with all attachments thereto.
Closing Balance Sheet (i) As soon as practicable (and in no event later than 45 days after the Closing) the Company shall prepare and deliver to the Parent and the Shareholders' Representative a proposed actual closing consolidated balance sheet of the Company and its subsidiaries as of the opening of business on the Closing Date (the "Closing Balance Sheet"). The Closing Balance Sheet will be prepared in accordance with GAAP on a basis consistent with the Audited Balance Sheets. Simultaneously with the preparation and delivery of the Closing Balance Sheet, the Company shall prepare and deliver to the Parent and the Shareholders' Representative a statement of "Closing Net Worth," defined herein as total assets, including cash, less total liabilities, excluding the outstanding balance of the Crestar Loan, each as set forth in the Closing Balance Sheet.
(ii) If neither the Parent nor the Shareholders' Representative objects to the determination by the Company of the Closing Net Worth by written notice of objection (the "Notice of Objection") delivered to the other party within 20 days after the receipt of such statement, such Notice of Objection to describe in reasonable detail such party's proposed adjustments to the Closing Net Worth, the proposed Closing Net Worth shall be deemed final and binding.
(iii) If either party delivers a Notice of Objection in respect of the Closing Net Worth, then any dispute shall be resolved in accordance with paragraph (b) of this Section 2.9.
(iv) During the period that the Parent and the Shareholders' Representative are conducting their review of the determination of the Closing Net Worth, and subsequent to issuance of the Closing Balance Sheet, Parent and the Shareholders' Representative and their respective representatives shall have reasonable access during normal business hours to the workpapers, schedules, memoranda, and all of the documents, including accounting records and other information arising after the Closing Date, prepared or reviewed by the Company and its employees related to or arising in connection with the preparation of the Closing Balance Sheet and the determination of the Closing Net Worth.
(v) The Company will make the work papers prepared in connection with its preparation of the Closing Balance Sheet available to each of the Parent and the Shareholders' Representative and their respective representatives at reasonable times and upon reasonable notice subsequent to the completion of their review of the Closing Balance Sheet and at any time during the resolution of any objections raised by any party with respect to the Closing Balance Sheet and the determination of the Closing Net Worth.
Contingent Liabilities Assume, guarantee, become liable as a surety, endorse, contingently agree to purchase, or otherwise be or become liable, directly or indirectly (including, but not limited to, by means of a maintenance agreement, an asset or stock purchase agreement, or any other agreement designed to ensure any creditor against loss), for or on account of the obligation of any person or entity, except by the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of the Company’s business.
Transaction Expenses Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of one firm of special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other Holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement or the Notes (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement or the Notes or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement or the Notes, or by reason of being a Holder of any Note, but only to the extent such subpoena or legal proceeding arises out of matters related to the Company, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided. The Company will pay, and will save each Purchaser and each other Holder of a Note harmless from, all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other Holder in connection with its purchase of the Notes).
Excluded Liabilities Notwithstanding anything to the contrary contained herein, Purchaser shall not assume any duties, obligations or liabilities of Seller of any kind, whether known, unknown, contingent or otherwise, other than the Transferred Liabilities, including any duty, obligation or liability:
(1) not directly relating to the Transferred Assets;
(2) attributable to any acts or omissions to act taken or omitted to be taken by or on behalf of Seller (or any of its Affiliates) prior to the Effective Time in violation of any applicable laws, contracts or legal or fiduciary duties;
(3) attributable to any actions, causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its affiliates or direct or indirect Subsidiaries);
(4) for (i) Taxes relating to the Transferred Assets or the Transferred Liabilities for taxable periods (or portions thereof) ending on or prior to the Closing Date and (ii) Taxes for which Seller is liable pursuant to Section 2.1(h);
(5) except as expressly set forth in Section 8.13, relating to the Employees in any respect, including the employment or termination of employment of any Employee, in the case of each Branch Employee relating to any period prior to the time such Branch Employee become employed by Purchaser as contemplated hereby, and relating to the Benefit Plans, ERISA, COBRA or the WARN Act in any respect, whether arising before or after the Effective Time (for avoidance of doubt, Excluded Liabilities include any duty, obligation or liability arising under the Seller Employment Agreements, the Parent Equity Incentive Plans, any contract listed on Schedule 6.8(b)(ii) or any plan listed on Schedule 6.8(b)(iii));
(6) arising from circumstances, events or conditions prior to the Effective Time and not expressly assumed hereunder; and
(7) all amounts due and payable to any Affiliate (collectively, the “Excluded Liabilities”). For avoidance of doubt, Excluded Liabilities shall include the Perryville Loan Liabilities, and Purchaser shall not be a successor to Seller with respect to any Perryville Loan Liabilities. This Section 2.1(f) is not intended to enlarge the rights of any third parties relating to the Excluded Liabilities. Nothing contained in this Agreement shall prevent either party hereto from contesting matters relating to the Excluded Liabilities with any third party.
Closing Date Deliveries On the Closing Date, the Company shall have delivered to the Representative executed copies of the Representative’s Purchase Option.
Post-Closing Items (a) The Loan Parties shall take all necessary actions to satisfy the items described on Schedule 5.16 within the applicable periods of time specified in such Schedule (or such longer periods as the Administrative Agent may agree in its sole discretion).
(b) In connection with each of the Mortgaged Properties, within ninety (90) days of the Closing Date (or such longer period as the Administrative Agent may reasonably allow) (i) each of the Mortgages, in form and substance reasonably satisfactory to the Administrative Agent, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect; except for the Deed of Mortgage, which the Loan Parties represent has been filed and recorded in the corresponding Section of the Puerto Rico Registry of Property and the Deed of Amendment, which the Loan Parties represent has been filed and is pending recordation in the corresponding Section of the Puerto Rico Registry of Property, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02 and (iii) (A) each of such Mortgages shall have been filed and recorded in the corresponding recording office (except for the Deed of Mortgage, which the Loan Parties represent has been filed and recorded in the corresponding Section of the Puerto Rico Registry of Property and the Deed of Amendment which the Loan Parties represent has been filed and is pending recordation in the corresponding Section of the Puerto Rico Registry of Property) and, in connection therewith, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing and recordation and (B) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company in an amount not to exceed the fair market value of such mortgaged property (as determined in good faith by the Lead Borrower), together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than those permitted under Section 6.02, together with such flood determinations, surveys and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Administrative Agent.
Organizational Expenses; Liabilities of the Holders (a) The Servicer shall pay organizational expenses of the Issuer as they may arise.
(b) No Certificateholder (including the Seller if the Seller becomes a Certificateholder) shall have any personal liability for any liability or obligation of the Issuer.
