Pre-Closing Adjustments Sample Clauses

Pre-Closing Adjustments. At or before the Effective Time of the Merger, the Company shall make such accounting entries or adjustments, including additions to its ALL and charge-offs of loans, as Parent shall direct as a result of its on-going review of the Company (including its review of the information provided to it pursuant to Sections 6.05 and 6.12) or in order to implement its plans following the Effective Time or to reflect expenses and costs related to the Merger; provided, however, that unless the adjustment would otherwise be required by applicable Law, or by regulatory accounting principles or GAAP applied on a basis consistent with the financial statements of the Company, (a) the Company shall not be required to take such actions more than one day prior to the Effective Time of the Merger or prior to the time Parent agrees in writing that all of the conditions to its obligation to close as set forth in Section 7.03 have been satisfied or waived and each of the approvals in Section 7.01(b) have been received, and (b) no such adjustment shall (i) require any filing with any Governmental Authority, (ii) violate any law, rule or regulation applicable to the Company, (iii) otherwise materially disadvantage the Company if the Merger is not consummated or (iv) constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred, or as an admission or acknowledgement by the Company that any such entry or adjustment is appropriate or required or that any financial statement or information previously provided by the Company was incorrect in any respect.

Pre-Closing Adjustments. At or before the Effective Time of the Merger, the Company and any of the Company Subsidiaries shall make such accounting entries or adjustments, including additions to their ALLL and charge-offs of loans, as Parent shall direct as a result of its on-going review of the Company and any of the Company Subsidiaries (including its review of the information provided to it pursuant to Sections 6.05 and 6.15) or in order to implement its plans following the Effective Time or to reflect expenses and costs related to the Merger; provided, however, that unless the adjustment would otherwise be required by applicable law, rule or regulation, or by regulatory accounting principles and GAAP applied on a basis consistent with the financial statements of the Company, (a) the Company shall not be required to take such actions more than one day prior to the Effective Time of the Merger or prior to the time Parent agrees in writing that all of the conditions to its obligation to close as set forth in Section 7.02 have been satisfied or waived and each of the approvals in Section 7.01(b) have been received, and (b) no such adjustment shall (i) require any filing with any Governmental Authority, (ii) violate any law, rule or regulation applicable to Parent, (iii) otherwise materially disadvantage the Company if the Merger was not consummated or (iv) constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred.

Pre-Closing Adjustments. At or before the Closing, Seller shall ----------------------- cause the Bank to make and the Bank shall make, such accounting entries or adjustments, including charge-offs of loans, as CNB shall direct in order to implement its plans for the Bank following the Closing or to reflect expenses and costs related to the Bank Merger; provided, however, that (a) Seller and the -------- ------- Bank shall not be required to take such actions more than two days prior to the Closing Date, and (b) based upon consultation with counsel and accountants for Seller and the Bank, no such adjustment shall (i) require any filing with any governmental agency, (ii) violate any law, rule or regulation applicable to Seller or the Bank, or (iii) otherwise materially disadvantage Seller or the Bank if the Acquisition were not consummated, unless, in the case of (iii), CNB agrees in writing that all of its conditions to Closing set forth in Article V have been satisfied or waived; and further provided that in any event, no ------- -------- accrual or reserve made by the Bank pursuant to this Section 4.8, or any litigation or regulatory proceeding arising out of any such accrual or reserve, shall constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred. The recording of such adjustments shall not be deemed to imply any misstatement of previously furnished financial statements or information, shall not be construed as concurrence of Seller's or the Bank's management with any such adjustments, and shall not affect the Purchase Price.

Pre-Closing Adjustments. No later than three (3) Business Days prior to the Closing Date, the Company will prepare and deliver to the Purchaser a certificate (the “Pre-Closing Statement”) setting forth the Company’s good faith estimate (as of the Closing Date) of (A) the Indebtedness Payoff Amount to be paid pursuant to Section 1.3(b) (the “Estimated Indebtedness”), (B) the estimated aggregate amount of all Transaction Expenses to be paid pursuant to Section 1.3(c) (the “Estimated Transaction Expenses”), (C) the estimated Working Capital (the “Estimated Working Capital”), and (D) the Closing Payment Amount payable to the Paying Agent, for further payment to the Securityholders at the Closing pursuant to Section 1.3(a), based on, among other things, the foregoing clauses (A) through (C). The amount of Closing Payment Amount payable by the Purchaser on the Closing Date shall be based on the amounts set forth in such Pre-Closing Statement (the “Estimated Closing Purchase Amount”). Each of the foregoing calculations will be accompanied by reasonable supporting detail therefor. From and after the delivery of the Pre-Closing Statement, the Company will provide the Purchaser and its Representatives with reasonable access to the financial books and records and other information of the Company or that were used in the preparation of the Pre-Closing Statement that the Purchaser may reasonably request. In the event the Purchaser disagrees with any of the calculations set forth in the Pre-Closing Statement, including the Estimated Working Capital (or any of the components thereof), (y) the Purchaser will notify the Company in writing of such disagreement, setting forth the basis of such disagreement and (z) the Company will consider in good faith the Purchaser’s comments to the Pre-Closing Statement and/or any of the components thereof or calculations therein.

Pre-Closing Adjustments. At or before the Effective Time, the Company shall make such accounting entries or adjustments, including additions to its ALL and charge-offs of loans, as HEOP shall direct as a result of its on-going review of the Company or in order to implement its plans following the Effective Time or to reflect expenses and costs related to the Merger; provided, however, that unless the adjustment would otherwise be required to be made prior to the Closing by applicable Law, or by regulatory accounting principles or GAAP applied on a basis consistent with the financial statements of the Company, (a) the Company shall not be required to take such actions more than one day prior to the Effective Time of the Merger or prior to the time HEOP agrees in writing that all of the conditions to its obligation to close as set forth in Section 7.03 have been satisfied or waived and each of the approvals in Section 6.01 have been received, and (b) no such adjustment shall (i) require any filing with any Governmental Entity, (ii) violate any applicable Law, (iii) otherwise materially disadvantage the Company if the Merger is not consummated or (iv) constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred, or as an admission or acknowledgement by the Company that any such entry or adjustment is appropriate or required or that any financial statement or information previously provided by the Company was incorrect in any respect.

Pre-Closing Adjustments. (a) Seller shall prepare, or cause to be prepared, and deliver to Buyer on or before the date that is three days before the anticipated Closing Date a statement (the “Reference Statement”) consisting of (A) an estimated consolidated balance sheet of the Business (other than the Canadian Sub) as of the close of business on the Closing Date, (B) a good faith estimation in reasonable detail of the Reference Working Capital (C) a good faith calculation of the amounts of any contribution or payments required under Section 2.4(b) and all other amounts specifically identified in this Agreement as being reflected on the face of the Reference Closing Statement. The Reference Statement shall be prepared in accordance with GAAP applied on a basis consistent with the accounting principles, methods, practices, policies and procedures (with consistent classifications, judgments and valuation and estimation methodologies) that were used to prepare the Historical Financial Statements, except as set forth in Exhibit 2.4(a) attached hereto and except for the exclusion of the Canadian Sub (with such exceptions, the “Applicable Accounting Principles”). For illustrative purposes, Exhibit 2.4(a) contains a pro forma calculation of the Reference Working Capital as of June 30, 2008 applying the Applicable Accounting Principles. (b) The difference between (i) the Base Working Capital Value, minus (ii) the Reference Working Capital, expressed as a positive, if positive, or as a negative, if negative, is referred to in this Agreement as the “Reference Working Capital Adjustment Amount.” In the event that the Reference Working Capital Adjustment Amount is a negative number, then Opco shall pay to the Seller Cash on or before the Closing Date (by wire transfer of immediately available funds) an amount in cash equal to the absolute value of the Reference Working Capital Adjustment Amount. In the event that the Reference Working Capital Adjustment Amount is a positive number, then Seller shall pay to Opco Cash on or before the Closing Date (by wire transfer of immediately available funds) an amount in cash equal to the value of the Reference Working Capital Adjustment Amount.

Pre-Closing Adjustments. (i) No later than the fourth Business Day prior to the Closing Date, the Sellers shall prepare and deliver to the Purchasers an officer’s certificate, certifying as to compliance with Section 9.5(k)(B), or to the extent of any noncompliance with Section 9.5(k)(B), the amount, if any, that the estimated value of the Working Capital Accounts has been decreased by such noncompliance (the “Estimated Working Capital Adjustment”), which certificate shall be accompanied by an estimated Closing Date Balance Sheet prepared from the books and records of the Company in accordance with GAAP and in a manner consistent with the preparation of the Financial Statements. The Purchase Price payable at the Closing shall be decreased, on a dollar for dollar basis, to the extent that the Estimated Working Capital Adjustment exceeds $100,000. (ii) The Purchase Price payable at the Closing shall be adjusted (i.e., either increased or decreased by the Income Adjustment Amount if the Closing shall have not occurred on or before September 2, 2007. The “Income Adjustment Amount” shall mean the amount (which may be positive or negative) calculated by subtracting the aggregate EBITDA (whether positive or negative) from and including September 3, 2007 to the close of business on the day preceding the Closing Date from the aggregate Income Accretion Amount from and including September 3, 2007 to the Closing Date. By way of example only, an EBITDA of negative $10 and an Income Accretion Amount of $15 would result in an Income Adjustment Amount of $25 (as the subtraction of negative EBITDA would result in the addition of such amount). No later than the fourth Business Day prior to the close of business on the day preceding the Closing Date, the Sellers shall prepare and deliver to the Purchasers an officer’s certificate, certifying as to the estimated Income Adjustment Amount as of the Sunday prior to the Closing Date (the “Estimated Income Adjustment Amount”), which certificate shall be accompanied by a statement of the EBITDA and Income Accretion Amount of the Company from and including September 3, 2007 through the Sunday prior to the Closing Date, to be prepared from the books and records of the Company in accordance with GAAP, where applicable, and in a manner consistent with the preparation of the Financial Statements. The Purchase Price payable at the Closing shall be increased or decreased, on a dollar for dollar basis, by the Estimated Income Adjustment Amount (with the Purchase ...

Pre-Closing Adjustments. Prior to the Closing Date, the Rent Factors shall be adjusted, either upward or downward, as the case may be (in either case, a “Rent Adjustment”), in the event of either of the following: (a) to reflect any changes in the Pricing Assumptions (including any changes in the assumed amortization schedules for the Notes) or the Tax Assumptions from those specified in Schedule 2 hereto and in Section 1 of the Tax Indemnity Agreement, respectively; and (b) at the request of the Lessee or the Owner Participant, to reflect any enactment, promulgation, release or adoption of, amendment to or change in the Code or Treasury Regulations (other than changes affecting alternative minimum tax provisions) (“Tax Law Change”) that is enacted, promulgated, released or adopted prior to the Closing Date and effective in respect of the U.S. federal income tax treatment of the Overall Transaction. Rent Adjustments will be calculated by the Owner Participant so as to preserve the Owner Participant’s Net Economic Return without altering the credit profile such that the Termination Amount reflected on the relevant schedule attached to the Form of Facility Lease Agreement attached as Exhibit C on any Termination Date while the Notes are outstanding shall not increase by more than 1.0% of the Purchase Price; provided, however, that each adjustment of Basic Rent and Allocated Rent shall comply with the requirements of Rev. Proc. 2001-28, as modified and as in effect at the time of such adjustment, and Section 467 of the Code and any proposed, temporary or final regulations thereunder as in effect at the time of such adjustment, and shall not cause the Facility Lease to be a “disqualified leaseback or long-term agreement” within the meaning of Section 467 of the Code and any such regulations thereunder. Such adjustment and the corresponding adjustments to the other Rent Factors shall be computed by such Owner Participant on the same basis that was used in calculating the Rent Factors as set forth in the schedules to the Facility Lease on the date hereof. If any adjustment required by this Section 12.1 would result in (A) the Facility Lease not qualifying as an operating lease for the Lessee under FASB 13 or FASB 98, or (B) the aggregate of all rent adjustments made on or before, or contemplated to be made on, the Closing Date (other than adjustments to reflect a change in Transaction Expenses or the actual interest rate of the Pass Through Certificates) causing the after-tax net presen...

Pre-Closing Adjustments. (i) Seller has delivered to Buyer an estimated consolidated balance sheet for Seller (the “Estimated Closing Date Balance Sheet”) and an estimated calculation of the Current Asset Value Shortfall (as defined below), in each case, measured as of the Closing Date after giving effect to the payment of, or reservation for, all liabilities and other obligations described in Section 4(a) below. Seller shall also provide Buyer with copies of all work papers and other documents and data as were used to prepare the Estimated Closing Date Balance Sheet. If the Estimated Closing Date Balance Sheet shows a Current Asset Value Shortfall, the Purchase Price payable under Section 2(a)(i) above shall be reduced by the aggregate amount of such Current Asset Value Shortfall multiplied by 70%, and the aggregate Purchase Price to be paid to Seller, as set forth in Section 2(a) above, shall be adjusted accordingly. As used herein, “Current Asset Value Shortfall” means the amount by which (x) current assets minus total liabilities, excluding deferred revenue and operating leases assumed by Buyer (in each case, determined on a consolidated basis in U.S. dollars for Seller), is less than (y) $1,300,000.

Pre-Closing Adjustments. At or before the Effective Time, SCB shall, in a manner mutually satisfactory to the parties, establish such additional accruals and reserves as may be directed by Acquiror to implement its plan to conduct SCB's business following the Merger and otherwise to reflect Merger-related expenses and costs incurred by SCB; PROVIDED, HOWEVER, that SCB shall not be required to take such action (a) more than five (5) days prior to the Effective Time, (b) unless Acquiror agrees in writing that all conditions to closing set forth in Article X have been satisfied or waived, and (c) unless SCB shall have received a written waiver by Acquiror of its right to terminate this Agreement, and no accrual or reserve made by SCB or SC Bank pursuant to this Section 8.7, or any litigation or regulatory proceeding arising out of any such accrual or reserve, shall constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred.