Common use of Closing Date Statements Clause in Contracts

Closing Date Statements. (a) Attached hereto as Exhibit 3.3(a) is a statement (the “Closing Date Indebtedness Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by lender, the Company’s good faith estimate of the Closing Date Indebtedness (“Estimated Closing Date Indebtedness”). Attached to the Closing Date Indebtedness Statement are copies of the Payoff Letters delivered in accordance with Section 8.2(l). (b) Attached hereto as Exhibit 3.3(b) is a statement (the “Closing Date Transaction Expense Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by payee, the Company’s good faith estimate of the aggregate amount of the Transaction Expenses (“Estimated Transaction Expenses”). Attached to the Closing Date Transaction Expense Statement are statements by each of the Members, in which each Member represents and warrants that upon payment of the respective amounts specified in such Closing Date Transaction Expense Statement, each Person that is to be paid in accordance with such Closing Date Transaction Expense Statement shall have been paid in full for all Transaction Expenses. (c) Attached hereto as Exhibit 3.3(c) is a statement (the “Closing Date Financial Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), that sets forth the Company’s good faith estimate of (i) the Net Working Capital (the “Estimated Working Capital”), (ii) the Estimated Working Capital Surplus, if any, or the Estimated Working Capital Deficit, if any, and (iii) the Closing Date Cash (the “Estimated Closing Date Cash”).

Closing Date Statements. (a) Attached hereto Not less than five (5) Business Days prior to the Closing Date, the Company shall deliver to Parent: (i) a statement, signed by the Chief Financial Officer of the Company, which sets forth the (i) name of each Company Stockholder of record on the books and records of the Company and (ii) number and class of shares of Company Stock owned by each such Company Stockholder (the “Closing Date Capitalization Statement”); (ii) a statement (the “Closing Date Financial Certificate”), signed by the Chief Financial Officer of the Company, which sets forth a good faith estimate of (i) the Cash and Cash Equivalents as Exhibit 3.3(aof the Effective Time (the “Estimated Closing Cash”) is and (ii) the Net Working Capital, and the Estimated Net Working Capital Surplus or the Estimated Net Working Capital Deficit, as the case may be, as of 11:59 pm on the day prior to the Closing Date (the “Estimated Closing Net Working Capital”); (iii) a statement (the “Closing Date Indebtedness Statement”), signed by the Chief Executive Financial Officer of the Company, which sets forth by lender or other party, the aggregate principal amount and accrued and unpaid interest of Indebtedness of the Company (on behalf and in the name of the Company), which sets forth, by lender, the Company’s good faith estimate of the Closing Date Indebtedness (“Estimated Closing Date Indebtedness”). Attached to the Closing Date Indebtedness Statement are copies , prepared as of the Payoff Letters delivered in accordance with Section 8.2(l).Effective Time; and (biv) Attached hereto as Exhibit 3.3(b) is a statement (the “Closing Date Transaction Expense Statement”), signed by the Chief Executive Financial Officer of the Company (on behalf and in the name of the Company), which sets forth, by payee, forth the Company’s good faith estimate of the aggregate amount of the Company Transaction Expenses (the “Estimated Closing Company Transaction Expenses”). Attached ) as of immediately prior to the Closing. (b) The Company shall consider in good faith Parent’s comments to the Closing Date Capitalization Statement, the Closing Date Financial Certificate, the Closing Date Indebtedness Statement and the Closing Company Transaction Expenses, which comments Parent shall deliver to the Company no fewer than two (2) Business Days prior to the Closing Date, and revise the Closing Date Capitalization Statement, the Closing Date Financial Certificate, the Closing Date Indebtedness Statement and the Closing Date Transaction Expense Statement to incorporate any changes the Company determines in good faith are statements by each of the Members, in which each Member represents and warrants that upon payment of the respective amounts specified in such Closing Date Transaction Expense Statement, each Person that is to be paid in accordance with such Closing Date Transaction Expense Statement shall have been paid in full for all Transaction Expensesappropriate. (c) Attached hereto In connection with preparation and delivery of the Closing Date Capitalization Statement, the Closing Date Financial Certificate and the Closing Date Indebtedness Statement, the Company shall provide all reasonable supporting detail to evidence the Company’s calculations, explanations and assumptions and any documentation or information as Exhibit 3.3(creasonably requested by Parent. (d) is Within five (5) Business Days following execution of this Agreement, Parent shall deliver to the Company a statement (the “Closing Date Financial Parent Transaction Expenses Statement”), signed by ) setting forth the Chief Executive Officer Parent Transaction Expenses as of the date of this Agreement. Thereafter, not less than five (5) Business Days prior to the Closing Date, the Parent shall deliver to the Company the Parent Transaction Expenses as of immediately prior to the Closing (on behalf and the “Closing Parent Transaction Expenses”). Parent shall consider in the name of the Company), that sets forth good faith the Company’s comments regarding the Parent Transaction Expenses, which comments the Company shall deliver to the Parent no fewer than two (2) Business Days prior to the Closing Date, and make such adjustments to the Parent Transaction Expenses in response to such comments as the Parent determines in good faith estimate of (i) the Net Working Capital (the “Estimated Working Capital”), (ii) the Estimated Working Capital Surplus, if any, or the Estimated Working Capital Deficit, if any, and (iii) the Closing Date Cash (the “Estimated Closing Date Cash”)are reasonable.

Closing Date Statements. (a) Attached hereto as Exhibit 3.3(aNot less than three (3) is Business Days prior to the Closing Date, the Company shall deliver to the Purchaser a statement (the “Closing Date Indebtedness Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by lender, the Company’s good faith estimate of the aggregate amount of the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”). Attached to the Closing Date Indebtedness Statement are will be copies of the Payoff Letters delivered in accordance with Section 8.2(l)8.2(g) hereof. (b) Attached hereto as Exhibit 3.3(bNot less than three (3) is Business Days prior to the Closing Date, the Company shall deliver to the Purchaser a statement (the “Closing Date Transaction Expense Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by payee, the Company’s good faith estimate of the aggregate amount of (i) the Change of Control Payments, and (ii) the Transaction Expenses (the “Estimated Transaction Expenses”). Attached to the Closing Date Transaction Expense Statement are statements by each of the Memberswill be documents, in form and substance reasonably acceptable to the Purchaser, which each Member represents and warrants confirm that upon payment of the respective amounts specified in such Closing Date Transaction Expense Statement, each Person that is to be paid in accordance with such Closing Date Transaction Expense Statement shall have been paid in full for all Change of Control Payments and Estimated Transaction Expenses, as applicable. (c) Attached hereto as Exhibit 3.3(cNot less than three (3) is Business Days prior to the Closing Date, the Company shall deliver to the Purchaser a statement (the “Closing Date Financial Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), that which sets forth the Company’s good faith estimate of (i) the Net Working Capital (the “Estimated Net Working Capital”), (ii) the Estimated Net Working Capital Surplus, if any, or the Estimated Net Working Capital Deficit, if any, and (iii) the Closing Date Cash (the “Estimated Closing Date Cash”). (d) Not less than three (3) Business Days prior to the Closing Date, the Company shall deliver to the Purchaser a statement (the “Closing Date Payment Statement,” and together with the Closing Date Indebtedness Statement, the Closing Date Expense Statement and the Closing Date Financial Statement, the “Closing Statements”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth the following information relating to each Member, as applicable: (i) name, address (as listed in the record books of the Company) and social security number or tax identification number (if known by the Company), (ii) the number and type of Membership Interests held by such Person and the respective unit certificate numbers (if any), (iii) the percentage and amount of the Closing Payment payable to such Person, (iv) the percentage of the Escrow Funds allocable to such Member upon any disbursements thereof to the Members and (v) the percentage of the Adjustment Amount, if any, allocable to such member in the event any Adjustment Amount is owed to the Members pursuant to Section 3.6(f)(i). The Members acknowledge and agree that the Member Representative, and after the Closing, the Company and its Subsidiaries, and the Purchaser shall be entitled to rely on the Closing Date Payment Statement for the purposes of making any payments hereunder. (e) To the extent reasonably requested by the Purchaser, the Company will make available to the Purchaser and its auditors and advisors all records and work papers used in preparing the Closing Statements. The Members and the Company will review any comments proposed by the Purchaser with respect to the Closing Statements and will consider, in good faith, any appropriate changes.

Closing Date Statements. (a) Attached hereto as Exhibit 3.3(a) is a statement (the “Closing Date Indebtedness Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by lender, the Company’s good faith estimate of the Closing Date Indebtedness (“Estimated Closing Date Indebtedness”). Attached Not less than three Business Days prior to the Closing Date Indebtedness Statement are copies of the Payoff Letters delivered in accordance with Section 8.2(l). (b) Attached hereto as Exhibit 3.3(b) is a statement (the “Closing Date Transaction Expense Statement”)Date, signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by payee, the Company’s good faith estimate of the aggregate amount of the Transaction Expenses (“Estimated Transaction Expenses”). Attached will deliver to the Closing Date Transaction Expense Statement are statements by each of the Members, in which each Member represents and warrants that upon payment of the respective amounts specified in such Closing Date Transaction Expense Statement, each Person that is to be paid in accordance with such Closing Date Transaction Expense Statement shall have been paid in full for all Transaction Expenses. (c) Attached hereto as Exhibit 3.3(c) is Parent a statement (the “Closing Date Financial Statement”), signed by the Chief Executive Financial Officer of the Company (on behalf and in the name of the CompanyCompany Group), that which sets forth the Company’s good faith estimate of (i) the Net Working Capital (the “Estimated Net Working Capital”), including reasonable supporting data and schedules relating to the calculation thereof, (ii) the Estimated Net Working Capital Surplus, if any, or the Estimated Net Working Capital Deficit, if any, and (iii) the Closing Date Cash (the “Estimated Closing Date Cash”), (iv) the Closing Date Indebtedness on a lender-by-lender basis (the “Estimated Closing Date Indebtedness ”) and (v) the amount of Transaction Expenses by payee (the “Estimated Transaction Expenses”) (the amount of Merger Consideration determined on the basis of the foregoing the “Estimated Merger Consideration”). At the same time, the Company shall deliver attached to the Closing Date Financial Statement (i) copies of payoff letters (“Payoff Letters”) from each commercial lender to the Paid Indebtedness outstanding as of the Closing Date, satisfactory to Parent, and evidencing that, if such aggregate amount so identified is paid to such lender on the Closing Date, such Paid Indebtedness will be repaid in full and that all Liens affecting any real or personal property of any member of the Company Group will be released and (ii) evidence satisfactory to Parent that, upon payment of the respective amounts specified in such Closing Date Financial Statement, each Person that is to be paid in accordance with such Closing Date Financial Statement will have been paid in full for all Paid Transaction Expenses, as applicable. (b) Not less than three Business Days prior to the Closing Date, the Company will deliver to Parent a statement (the “Closing Date Payment Statement”), signed by the Chief Financial Officer of the Company (on behalf of the Company Group), which sets forth, in each case, as of immediately preceding the Closing, the (i) name, mailing address and, if known, e-mail address of each Stockholder of record on the books and records of the Company, (ii) number of shares of Common Stock owned of record by each such Stockholder, (iii) number of shares of Series A Preferred Stock owned of record by each such Stockholder and their respective Series A Preference Amounts, (iv) number of shares and stock certificate numbers of Series B Preferred Stock owned of record by each such Stockholder and their respective Series B Preference Amounts, (v) portion of the Closing Date Payment Amount to be paid to each Stockholder pursuant to Section 3.2, (vi) name of each Option Holder and Phantom Equity Participant, (vii) Per Share Amount, (viii) Aggregate Option Exercise Price, (ix) with respect to each Option, the exercise price for a share of Common Stock, (x) amount of the Option Payment payable to each Option Holder pursuant to Section 3.6(c), (xi) Closing Aggregate Phantom Equity Distribution and the portion of the Closing Aggregate Phantom Equity Distribution payable to each Phantom Equity Participant in accordance with the Phantom Equity Agreement for such Phantom Equity Participant and (xii) number of Fully Diluted Shares. (c) Not less than three Business Days prior to the Closing Date, the Company will deliver to Parent the Closing Date Payments Exhibit in a proposed final form. The Company shall consult in good faith with Parent regarding the implementation of any reasonable revisions to the Closing Date Payments Exhibit proposed by Parent.

Closing Date Statements. (a) Attached hereto Not less than three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent: (i) a statement, signed by the Chief Financial Officer of the Company, which sets forth the (i) name of each Company Stockholder of record on the books and records of the Company, (ii) number of shares of Company Common Stock owned by each such Company Stockholder, (iii) name of each Exercising Option Holder, (iv) number of Exercised Option Shares owned by each such Exercising Option Holder, and the exercise price payable with respect thereto, and (v) Aggregate Option Exercise Price; (ii) a statement (the “Closing Date Financial Certificate”), signed by the Chief Financial Officer of the Company, which sets forth a good faith estimate of (i) the Cash and Cash Equivalents as Exhibit 3.3(aof 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Estimated Closing Cash”), (ii) is the Net Working Capital, and the Estimated Net Working Capital Surplus or the Estimated Net Working Capital Deficit, as the case may be, as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Estimated Closing Net Working Capital”), (iii) the Company Transaction Expenses as of immediately prior to the Closing (the “Estimated Closing Company Transaction Expenses”), (iv) the Reimbursed Transaction Expenses as of immediately prior to the Closing, (v) the Warrant Payment Amount as of immediately prior to the Closing, and (vi) the Contingent Stock Purchase Payment Amount as of immediately prior to the Closing; and (iii) a statement (the “Closing Date Indebtedness Statement”), signed by the Chief Executive Financial Officer of the Company (on behalf and in the name of the Company), which sets forth, forth by lenderlender or other party, the Company’s good faith estimate aggregate principal amount and accrued and unpaid interest of Indebtedness of the Closing Date Indebtedness (“Estimated Closing Date Indebtedness”). Attached Company and the Company Subsidiaries as of immediately prior to the Closing Date Indebtedness Statement are copies of the Payoff Letters delivered in accordance with Section 8.2(l). (b) Attached hereto as Exhibit 3.3(b) is a statement (the “Closing Date Transaction Expense Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth, by payee, the Company’s good faith estimate of the aggregate amount of the Transaction Expenses (“Estimated Transaction Expenses”). Attached to the Closing Date Transaction Expense Statement are statements by each of the Members, in which each Member represents and warrants that upon payment of the respective amounts specified in such Closing Date Transaction Expense Statement, each Person that is to be paid in accordance with such Closing Date Transaction Expense Statement shall have been paid in full for all Transaction Expenses. (c) Attached hereto as Exhibit 3.3(c) is a statement (the “Closing Date Financial Statement”), signed by the Chief Executive Officer of the Company (on behalf and in the name of the Company), that sets forth the Company’s good faith estimate of (i) the Net Working Capital (the “Estimated Working Capital”), (ii) the Estimated Working Capital Surplus, if any, or the Estimated Working Capital Deficit, if any, and (iii) the Closing Date Cash (the “Estimated Closing Date CashIndebtedness”).

Closing Date Statements. (a) Attached hereto Not less than two (2) Business Days prior to the Closing Date (or such later time prior to the Closing as Exhibit 3.3(a) is may be agreed by the Buyer and Seller), the Company shall deliver to Buyer a statement (the “Closing Date Indebtedness Statement”), signed by the Chief Executive Financial Officer of the Company (on behalf and in the name of the CompanyCompany and the Company Subsidiaries), which sets forth, forth by lender, lender or other creditor the Company’s good faith estimate aggregate amount of Indebtedness as of the Closing Date Indebtedness (“Estimated Closing Date Indebtedness”). Attached to the Closing Date Indebtedness Statement are Effective Time, and copies of the Payoff Letters delivered in accordance with Section 8.2(l)their then current form. (b) Attached hereto Not less than two (2) Business Days prior to the Closing Date (or such later time prior to the Closing as Exhibit 3.3(b) is may be agreed by the Buyer and Seller), the Company shall deliver to Buyer a statement certificate (the “Closing Date Transaction Expense StatementFinancial Certificate”), signed by the Chief Executive Financial Officer of the Company (on behalf and in the name of the CompanyCompany and the Company Subsidiaries), which sets forth, by payee, forth (i) the Company’s good faith estimate of Net Working Capital (the “Estimated Net Working Capital”) and its calculation of the Estimated Working Capital Surplus or the Estimated Working Capital Deficit, as the case may be, (ii) by payee, (A) the aggregate amount of the Transaction Expenses and invoices in the Company’s or Seller’s possession (“Estimated after reasonable inquiry) from such payees evidencing the amount of such Transaction Expenses”). Attached Expenses and (B) the individual amount of any Change of Control Payments (with a reference to the Closing Date Transaction Expense Statement are statements by Contract, if any, evidencing such Change of Control Payment for each of the Members, in which each Member represents and warrants that upon payment of the respective amounts specified in such Closing Date Transaction Expense Statement, each Person that is to be paid in accordance with such Closing Date Transaction Expense Statement shall have been paid in full for all Transaction Expenses. (c) Attached hereto as Exhibit 3.3(c) is a statement (the “Closing Date Financial Statement”payee), signed by the Chief Executive Officer of the Company and (on behalf and in the name of the Company), that sets forth iii) the Company’s good faith estimate of (i) the Net Working Capital (the “Estimated Working Capital”), (ii) the Estimated Working Capital Surplus, if any, or the Estimated Working Capital Deficit, if any, and (iii) the Closing Date Cash (the “Estimated Closing Date Cash”).