Estimated Closing Statement (i) No later than three (3) Business Days prior to the Closing Date, the Company shall deliver to Acquiror (A) a statement (the “Estimated Closing Statement”) setting forth the Company’s good faith estimates of (1) the Estimated Net Working Capital (as well as the resulting Estimated Net Working Capital Surplus (if any) or Estimated Net Working Capital Shortfall (if any)), (2) the Estimated Transaction Expenses, (3) the Estimated Closing Cash and (4) the Estimated Closing Debt, and (B) a schedule which shall include (1) the Estimated Total Stock Purchase Consideration, (2) wire instructions for the payments to be made to NewCo at the Closing pursuant to Section 2.3(b), (3) each Seller’s Pro Rata Percentage and the portion of the Estimated Total Stock Purchase Consideration attributable to each Seller; and (4) wire instructions for the payments of Debt, and the Estimated Transaction Expenses, including, for the avoidance of doubt, the Transaction Bonuses, to be made to the applicable payees thereof pursuant to Section 2.3(b) (such schedule delivered pursuant to this clause (B), the “Payment Schedule”). The Estimated Closing Statement shall be prepared by the Company in accordance with the Agreed Principles.
(ii) The Company shall consider in good faith any reasonable comments or objections to any amounts set forth on the Estimated Closing Statement notified to it by Acquiror prior to the Closing and if, prior to the Closing, the Company and Acquiror agree to make any modification to the Estimated Closing Statement, then the Estimated Closing Statement as so modified shall be deemed to be the Estimated Closing Statement; provided, that the failure of the Company and Acquiror to reach such mutual agreement will not give any party the right to terminate this Agreement or otherwise delay or fail to close the Stock Purchase or the other transactions contemplated hereunder.
(iii) Acquiror shall be entitled to rely on the accuracy of the Estimated Closing Statement and the Payment Schedule in all respects in making any payments pursuant to this Agreement, and all obligations to make such payments shall be deemed fulfilled to the extent such payments are made in accordance with this Agreement, the Payment Schedule, and the Estimated Closing Statement, including the Earn-Out Payment. None of Acquiror or any of its Affiliates (including, after the Closing, the Company) or the Seller Representative shall have any liability or obligation to any Person, including the Sellers and the Seller Guarantors, for any Damages arising from or relating to any errors, omissions or inaccuracies in the calculations of the portion of any amounts payable to any Seller or any other Person or any other errors, omissions or inaccuracy in the information set forth on the Estimated Closing Statement or the Payment Schedule.
Closing Statement (a) In connection with the prorations required under SECTION 9.1, not later than 5 Business Days prior to the intended Closing Date, the Seller will use commercially reasonable efforts to have prepared a proforma of the accounting for the transaction that reflects the Seller’s good faith estimate of how items subject to proration will be accounted for by crediting or debiting appropriate accounts either pre or post Closing, respectively (the “Draft Closing Statement”). The Draft Closing Statement shall reflect the parties’ good faith estimate of all of the prorations, credits and/or other adjustments to be made at Closing. On the day prior to Closing, the Seller and the Buyer will use commercially reasonable efforts to conduct inventories, examinations and audits of the Asset as may be necessary to verify and/or make revisions to the Draft Closing Statement based on such audits, examinations and inventories, and on the night preceding the Closing immediately after the Cut-Off Time, the Seller and the Buyer will use commercially reasonable efforts to make all final adjustments necessitated by such nights’ operations and prepare a final closing statement of prorations and adjustments required under SECTION 9.1 with such supporting documentation as the parties hereto may reasonably require being attached thereto. The Buyer and the Seller acknowledge and agree that the completion of the Draft Closing Statement pursuant to this SECTION 9.2(a) shall not be a condition precedent to the obligation of the Buyer or the Seller to consummate the transactions pursuant to the terms of this Agreement.
(b) If any items to be adjusted pursuant to this ARTICLE IX are not determinable at the Closing, or if any such adjustments made at the Closing prove to be incorrect, the adjustment shall be made subsequent to the Closing or corrected when the charge is finally determined. The Buyer shall deliver to the Seller no later than 60 days following the Closing Date (except with respect to any item which is not reasonably determinable within such time frame, as to which the time frame shall be extended until such item is reasonably determinable) a schedule of prorations setting forth the Buyer’s determination of prorations not determined at the Closing and any adjustments to the prorations made at Closing that it believes are necessary to complete the prorations as set forth in this ARTICLE IX. Any errors or omissions in computing adjustments or readjustments at the Closing or thereafter shall be promptly corrected or made, provided that the party seeking to correct such error or omission or to make such readjustment shall have notified the other party of such error or omission or readjustment on or prior to the date that is 30 days following the receipt from the other party of such other party’s proposed adjustment or readjustment. The party owing the other party any sum pursuant to any adjustment, or readjustment or correction under this ARTICLE IX shall pay such sum to the other party within 15 days after the same has been determined as set forth above.
Closing Adjustment (a) The Company shall deliver to Buyer no later than five (5) Business Days prior to the Closing Date a statement that sets forth the Company’s good faith estimate of (i) the balance sheet of the Company as of the Measurement Time (the “Estimated Balance Sheet”), which shall be prepared in accordance with the Accounting Principles; (ii) the Closing Date Net Working Capital and, based thereon, the Adjustment Amount; (iii) the Company Cash and, based thereon, the amount of the Company Cash Deficiency (if any), (iv) the Closing Indebtedness Amount, (v) the Company Transaction Expenses and, based thereon, (vi) the Purchase Price (the “Estimated Purchase Price”) and the Cash Consideration (the “Estimated Cash Consideration”), together with reasonably detailed calculations demonstrating each component thereof and such documentation and access to the Company’s Books and Records as is reasonably requested by Buyer to permit Buyer to review the calculation of amounts set forth therein. Buyer shall have the ability to review and provide comments to (i) – (vi) above and the Company shall consider in good faith Buyer’s comments.
(b) No later than ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Members’ Representative a statement that sets forth Buyer’s calculation of (i) the balance sheet of the Company as of the Measurement Time (the “Closing Date Balance Sheet”) which shall be prepared in accordance with the Accounting Principles, (ii) the Closing Date Net Working Capital and, based thereon, the Adjustment Amount, (iii) the Company Cash and, based thereon, the amount of the Company Cash Deficiency (if any), (iv) the Closing Indebtedness Amount, (v) the Company Transaction Expenses and, based thereon, (vi) the Purchase Price and the Cash Consideration, together with reasonably detailed supporting calculations demonstrating each component thereof (the “Closing Date Statement”).
(c) The Members’ Representative shall have thirty (30) days after delivery of the Closing Date Statement in which to notify Buyer in writing (such notice, a “Closing Date Dispute Notice”) of any discrepancy in, or disagreement with, the items reflected on the Closing Date Statement (and specifying the amount of each item in dispute and setting forth in reasonable detail the basis for each such discrepancy or disagreement), and upon agreement by Buyer regarding the adjustment requested by the Members’ Representative, an appropriate adjustment shall be made thereto. If the Members’ Representative does not deliver a Closing Date Dispute Notice to Buyer during such thirty (30)-day period, the Closing Date Statement shall be deemed to be accepted in the form presented to the Members’ Representative. If the Members’ Representative timely delivers a Closing Date Dispute Notice and Buyer and the Members’ Representative do not agree, within thirty (30) days after timely delivery of the Closing Date Dispute Notice, to resolve any discrepancy or disagreement therein, either the Members’ Representative or Buyer may submit the discrepancy or disagreement for review and final determination by the Independent Accounting Firm, it being understood that in making such determination, the Independent Accounting Firm shall be functioning as an expert and not as an arbitrator. The review by the Independent Accounting Firm shall be limited solely to the discrepancies and disagreements set forth in the Closing Date Dispute Notice and a single written submission to the Independent Accounting Firm by each of Buyer and the Members’ Representative with respect to such discrepancies and disagreements (which shall also be provided to the other party). The resolution of such discrepancies and disagreements and the determination of the Closing Date Net Working Capital and the resulting Adjustment Amount, the Company Cash and the resulting Company Cash Deficiency (if any), the Closing Indebtedness Amount, and the Company Transaction Expenses by the Independent Accounting Firm shall be (i) in writing, (ii) made in accordance with the Accounting Principles, definitions and relevant provisions of this Agreement, (iii) with respect to any specific discrepancy or disagreement, no greater than the higher amount calculated by Buyer or the Members’ Representative, as the case may be, and no lower than the lower amount calculated by Buyer or the Members’ Representative as the case may be, (iv) made as promptly as practicable after the submission of such discrepancies and disagreements to the Independent Accounting Firm (but in no event later than thirty (30) days after the date of submission), and (v) final and binding upon, and non-appealable by, the parties hereto and their respective successors and assigns for all purposes hereof, and not subject to collateral attack for any reason absent manifest error or fraud. The fees, costs and expenses of the Independent Accounting Firm shall be allocated to and borne by Buyer and the Members (in accordance with their respective Purchase Price Escrow Pro Rata Portions, which may be paid out of the Representative Expense Fund to the extent thereof) based on the inverse of the percentage that the Independent Accounting Firm’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Independent Accounting Firm. For example, should the aggregate value of the items in dispute equal $1,000 and the Independent Accounting Firm awards $600 in favor of the Members’ Representative’s position and $400 in favor of Buyer, then sixty percent (60%) of the costs of its review would be borne by Buyer and forty percent (40%) of such costs would be borne by the Members’ Representative (on behalf of the Members). Within five (5) Business Days of the resolution of all matters set forth in the Closing Date Dispute Notice, by mutual agreement of Buyer and the Members’ Representative or by the Independent Accounting Firm, Buyer shall prepare a revised version of the Closing Date Statement including an updated Purchase Price and Cash Consideration (the “Final Purchase Price”) reflecting such resolution and shall deliver copies thereof to the Members’ Representative, and such revised version (and all amounts set forth therein) shall be considered final and binding on the parties (the “Final Closing Date Statement”).
(d) If the Final Purchase Price exceeds the Estimated Purchase Price, Buyer shall pay to the Payment Agent for distribution to the Members on behalf of TopCo in connection with the Redemption the entire amount of such difference in cash by wire transfer of immediately available funds, and Buyer and the Members’ Representative shall instruct the Escrow Agent to release to the Payment Agent the entire balance of the Purchase Price Escrow Fund, in each case for further distribution to the Members in accordance with the applicable Consideration Spreadsheet and such Members’ Purchase Price Escrow Pro Rata Portions. If the Estimated Purchase Price exceeds the Final Purchase Price, the Members’ Representative (on behalf of each Member) and Buyer shall instruct the Escrow Agent to pay the entire amount of such difference to Buyer out of the Purchase Price Escrow Fund, with any remaining balance of the Purchase Price Escrow Fund to be paid by the Escrow Agent to the Payment Agent (for further distribution to the Members in accordance with the applicable Consideration Spreadsheet and such Members’ Purchase Price Escrow Pro Rata Portions); provided, however, that if the amount payable to Buyer under this Section 1.9(d) exceeds the Purchase Price Escrow Fund (a “Purchase Price Excess”), Buyer shall have the right to require the Members, severally and not jointly, in each case based on their then current respective Purchase Price Escrow Pro Rata Portions to pay to Buyer the Purchase Price Excess in cash by wire transfer of immediately available funds. If the Final Purchase Price is equal to the Estimated Purchase Price, there shall not be any adjustment.
(e) Any payments made pursuant to Section 1.9 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.
Closing Adjustments (a) No later than ten (10) Business Days prior to the Closing Date, the Target Company will deliver to Holdings the Target Company’s calculation of the Merger Consideration, including the Company’s good-faith estimate of each of: (i) the Closing Working Capital and the resulting Working Capital Adjustment, (ii) the amount of outstanding Indebtedness as of the Closing and the resulting Indebtedness Adjustment, and (iii) the total amount of Transaction Expenses that are incurred and unpaid by the Target Company as of the Closing and the resulting Transaction Expense Adjustment, in reasonable detail (the “Closing Statement”). Such estimates will be based on the Target Company’s books and records, the best estimate of the management of the Target Company and other information then available and will be prepared in accordance with GAAP. Holdings will have the right to review the Closing Statement and such supporting documentation or data of the Target Company as Holdings may reasonably request. If Holdings does not agree with the Closing Statement, the Target Company and Holdings will negotiate in good faith to mutually agree on an acceptable Closing Statement no later than five (5) Business Days prior to the Closing Date, and the Target Company will consider in good faith any proposed comments or changes that Holdings may reasonably suggest; provided, however, that the failure to include in the Closing Statement any changes proposed by Holdings, or the acceptance by Holdings of the Closing Statement, or the consummation of the Closing, will not limit or otherwise affect Holdings’ remedies under this Agreement, including Holdings’ right to include such changes or other changes in the Closing Statement, or constitute an acknowledgment by Holdings of the accuracy of the Closing Statement; provided, further, that the failure of Holdings and the Seller Representative to reach such mutual agreement will not give any party the right to terminate this Agreement or otherwise fail to close the transactions contemplated hereunder.
Post-Closing Adjustments As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
(a) the Final Purchase Price is more than the Estimated Final Purchase Price, Purchaser shall pay to Seller the amount of such difference, or
(b) the Final Purchase Price is less than the Estimated Final Purchase Price, Seller shall pay to Purchaser the amount of such difference, in either event by wire transfer in immediately available funds. Payment by Purchaser or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date.
Post-Closing Adjustment (a) Promptly after the Closing Date, and in any event not later than twenty (20) days following the Closing Date, Seller shall prepare and deliver to Purchaser a statement (the “Post-Closing Statement”), setting forth Seller’s good faith calculation of (i) Closing Working Capital, (ii) Closing Indebtedness, (iii) Transaction Expenses, (iv) Closing Cash, and (v) the resulting calculation of the Purchase Price, together with reasonable supporting detail and documentation. The Post-Closing Statement shall be accompanied by a certificate of an executive officer of Seller stating that the Post-Closing Statement has been prepared in accordance with this Agreement, including the Accounting Principles (to the extent applicable) and the definitions set forth herein. Purchaser shall give Seller and its Representatives reasonable access, upon reasonable notice and during normal business hours, to the premises, books and records, and appropriate personnel of the Business, the Conveyed Companies and Purchaser for purposes of the preparation of the Post-Closing Statement in accordance with this Section 2.4(a), and Purchaser shall instruct its personnel (including the Transferred Employees) and Representatives to reasonably cooperate with, and promptly and completely respond to all reasonable requests and inquiries of, Seller and its Representatives. Upon execution of a customary access letter if required by the applicable Party’s outside accountants, each Party and its Representatives shall have reasonable access, upon reasonable notice and during normal business hours, to all relevant work papers, schedules, memoranda and other documents prepared by the other Party or its Representatives (including its outside accountants) to the extent related to the calculation of the Closing Working Capital, Closing Cash, Closing Indebtedness and/or Transaction Expenses in any respect. Following delivery of the Post-Closing Statement, Seller shall afford Purchaser and its Representatives reasonable access, upon reasonable notice and during normal business hours, to Sellers’ and its Affiliates’ appropriate personnel involved in the preparation of the Post-Closing Statement.
(b) Purchaser and Purchaser’s accountants and financial and other advisors may make inquiries of Seller and/or Seller’s accountants regarding questions concerning or disagreements with the Post-Closing Statement arising in the course of Purchaser’s review, and Seller shall instruct its personnel and Representatives to reasonably cooperate with, and promptly and completely respond to all reasonable requests and inquiries of, Purchaser and its Representatives. Purchaser shall complete its review of the Post-Closing Statement within seventy-five (75) days after the delivery thereof to Purchaser. In no event later than the conclusion of such seventy-five (75) day period, Purchaser may submit to Seller a letter regarding its concurrence or disagreement with the accuracy of the Post-Closing Statement; provided that any such letter must specify (i) the items of the Post-Closing Statement with which Purchaser disagrees, (ii) the adjustments that Purchaser proposes to be made to the Post-Closing Statement (each, a “Disputed Item”) and (iii) the specific amount of such disagreement and all reasonable supporting detail and documentation and calculations (the “Purchaser Objection Statement”); and provided, further, that Purchaser may only disagree with the Post-Closing Statement to the extent Purchaser claims Seller did not prepare the Post-Closing Statement in a manner consistent with the Accounting Principles (to the extent applicable) or the terms of this Agreement (including the definitions set forth herein). If Purchaser does not deliver a Purchaser Objection Statement before the conclusion of such seventy-five (75) day period, the Post-Closing Statement shall be final and binding upon the Parties and Purchaser shall be deemed to have agreed with all items and amounts contained in the Post-Closing Statement. If Purchaser does deliver a Purchaser Objection Statement, following such delivery, Seller and Purchaser shall attempt in good faith to resolve promptly any disagreement as to the computation of any item in the Post-Closing Statement. Any items as to which there is no disagreement shall be deemed agreed. If a resolution of such disagreement has not been effected within ten (10) days (or longer, as mutually agreed by the Parties) after delivery of the Purchaser Objection Statement, then Seller and Purchaser shall execute a customary engagement letter with the Accountant and submit any unresolved Disputed
Closing Balance Sheet (a) As soon as practicable following the Closing Date, Purchaser shall cause to be prepared the balance sheet of the Subject Company as of the Closing Date (the "Closing Balance Sheet"). Within fifteen (15) days following the Closing Date, Purchaser shall deliver the Closing Balance Sheet to Seller, accompanied by (i) a certificate of an executive officer of Purchaser to the effect that (except with respect to adjustments required by this Agreement) the Closing Balance Sheet has been prepared and presented consistent with GAAP, applied on a consistent basis with the preparation of the Financial Statements (as defined in Section 2.6), and fairly presents the financial position of the Subject Company as of the Closing Date and (ii) a statement documenting the calculation of the Working Capital ("Working Capital Calculation Statement"). The Closing Balance Sheet and Working Capital Calculation Statement shall be audited by Xxxxxx Xxxxxxxx LLP, independent public accountants of Purchaser ("Purchaser's Auditor"), and reviewed by KPMG Peat Marwick LLP, independent public accountants of Seller ("Seller's Auditor"), who will be afforded full access to all books and records of the Subject Company and work papers used by Purchaser's Auditor in its audit. Purchaser's Auditor will issue a report to Purchaser and Seller within forty-five (45) days of the Closing Date concerning their audit and stating that the Closing Balance Sheet has been prepared in accordance with GAAP, it being understood that the report of Purchaser's Auditor must be unqualified.
(b) Within fifteen (15) days following the date on which the report of Purchaser's Auditor is delivered pursuant to Section 1.5(a), Seller shall give notice to Purchaser as to whether or not Seller's Auditor concurs with Purchaser's Auditor's report (such notice to contain Seller's Auditor's comments and exceptions to the Closing Balance Sheet, if any). If Seller gives notice that Seller's Auditor does not concur with Purchaser's Auditor's report and the parties are unable to mutually resolve Seller's Auditor's exceptions within ten (10) days following the date of such notice, then within twenty (20) days following the date of such notice Purchaser and Purchaser's Auditor and Seller and Seller's Auditor shall jointly select and retain an independent firm of certified public accountants of national standing and reputation (the "Independent Firm") for the purpose of resolving all remaining unresolved issues with respect to the Closing Balance Sheet and the Working Capital Calculation Statement. In the event that Seller and Seller's Auditor, on the one hand, and Purchaser and Purchaser's Auditor, on the other hand, are unable to agree upon the firm to be selected as the Independent Firm within such twenty (20) day period, then such selection shall be made by an independent arbitrator agreed upon from a list of three arbitrators supplied, at Purchaser's request, within five days after the expiration of the twenty-day period, to Purchaser and Seller from the American Arbitration Association, and the retention of the Independent Firm shall be made by Seller and Purchaser within five (5) days after such list is supplied.
(c) Within ten (10) days following such retention of the Independent Firm, Seller shall cause Seller's Auditor, and Purchaser shall cause Purchaser's Auditor, to present to the Independent Firm the issue or issues that must be resolved with respect to the Closing Balance Sheet and the calculation of the Purchase Price.
(d) Seller and Purchaser shall use their best efforts to cause the Independent Firm to render its decision as soon as is reasonably practicable, including, without limitation, prompt compliance with all reasonable requests by the Independent Firm for information, papers, books, records and the like; provided that Seller and Purchaser agree that the purpose of retention of the Independent Firm shall not include the conduct of its own independent audit of the Closing Balance Sheet, but rather shall be limited to resolving the issues presented to it and matters related thereto. All decisions of the Independent Firm with respect to the Closing Balance Sheet and the Working Capital Calculation Statement shall be final and binding upon both Seller and Purchaser.
(e) Purchaser and Seller shall bear all fees, costs, disbursements and other expenses of their own respective auditor associated with performance of their respective functions pursuant to this Section 1.5. For purposes of this Agreement, payment of all fees, costs, disbursements and other expenses of the Independent Firm which are incurred pursuant to this Section 1.5 shall be (i) split evenly between Seller and Purchaser if the amount of Working Capital arrived at by the Independent Firm is in the range that is greater than 25% of the Working Capital Differential (as defined below) plus the Working Capital determined by Purchaser's Auditor and less than the difference of the Working Capital determined by Seller's Auditor minus 25% of the Working Capital Differential, or (ii) by (A) Seller, if the amount of the Working Capital arrived at by the Independent Firm is less than or equal to 25% of the Working Capital Differential plus the Working Capital determined by Purchaser's Auditor, or (B) Purchaser, if the amount of the Working Capital arrived at by the Independent Firm is greater than or equal to the difference of the Working Capital determined by Seller's Auditor minus 25% of the Working Capital Differential. The "Working Capital Differential" shall mean the amount of the Working Capital determined by Seller's Auditor less the amount of the Working Capital determined by Purchaser's Auditor.
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.
Accounts Receivable; Inventory (a) For each Account with respect to which Advances are requested, on the date each Advance is requested and made, such Account shall be an Eligible Account.
(b) All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Eligible Accounts are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower’s Books are genuine and in all respects what they purport to be. All sales and other transactions underlying or giving rise to each Eligible Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose accounts are Eligible Accounts in any Transaction Report. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to all Eligible Accounts are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms.
(c) For any item of Inventory consisting of Eligible Inventory in any Transaction Report, such Inventory (i) consists of finished goods, in good, new, and salable condition, which is not perishable, returned (except to the extent of any refurbished Inventory in salable condition), consigned, obsolete, not sellable, damaged, or defective, and is not comprised of demonstrative or custom inventory, works in progress, packaging or shipping materials, or supplies; (ii) meets all applicable governmental standards; (iii) has been manufactured in compliance with the Fair Labor Standards Act; (iv) is not subject to any Liens, except the first priority Liens granted or in favor of Bank under this Agreement or any of the other Loan Documents and the Liens permitted under clause (j) of the definition of Permitted Liens; and (v) is located at the locations identified by Borrower in the Perfection Certificate where it maintains Inventory (or at any location permitted under Section 7.2).
Closing Statements Buyer’s Closing Statement, and a certificate confirming the truth of Buyer’s representations and warranties hereunder as of the Closing Date.