Pre-Closing Adjustments Clause Samples

Pre-Closing Adjustments. At or before the Effective Time, as determined by UNB and EWBC, UNB shall make such accounting entries or adjustments, including additions to its ALL and charge-offs of loans as EWBC shall direct as a result of its on-going review of UNB (including its review of the information provided to it pursuant to Sections 6.04 and 6.14) 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 UNB, (a) UNB shall not be required to take such actions more than one day prior to the Effective Time or prior to the time EWBC 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 EWBC, (iii) otherwise materially disadvantage UNB 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. (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. (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) 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 least four (4) Business Days prior to the Closing Date, the Stockholder shall cause Company to deliver to Parent (x) an unaudited estimated consolidated balance sheet of the Company as of the Adjustment Calculation Time (the “Estimated Closing Balance Sheet”), together with (y) a certificate of the Company setting forth the Company’s calculation of Closing Net Working Capital, Net Closing Indebtedness (and the Equity Value of the Company, the Net Working Capital Adjustment and the Closing Merger Consideration resulting therefrom) in each case (i) as of the Adjustment Calculation Time, (ii) using the line-items set forth on, and in the form attached hereto, as the Sample Adjustment Calculation and (iii) calculated in accordance with the Accounting Principles (the “Company Pre-Closing Certificate”). Such Estimated Closing Balance Sheet and Company Pre-Closing Certificate shall be prepared in accordance with the definitions in this Agreement and the Accounting Principles. Parent shall have a reasonable opportunity to review and consult with the Company with respect to the Company’s preparation of the Estimated Closing Balance Sheet and the above estimates set forth in the Company Pre-Closing Certificate. The Company Pre-Closing Certificate shall also identify the amount of Repaid Indebtedness and the Debt Payoff Recipients.

Pre-Closing Adjustments. At least three (3) Business Days prior to the Closing Date, the chief financial officer of the Company shall prepare and deliver to the Parent an estimated balance sheet and an estimated calculation of the Closing Date Working Capital for the Company as of the Closing Date, prepared in accordance with GAAP utilizing the same GAAP methodology and assumptions as was used in preparing the Financial Statements (the “Estimated Closing Date Balance Sheet”). If the Estimated Closing Date Balance Sheet shows a Working Capital Shortfall, the Purchase Price shall be reduced by the aggregate amount of such Working Capital Shortfall. If the Estimated Closing Date Balance Sheet shows a Working Capital Surplus, the Purchase Price shall be increased by the aggregate amount of such Working Capital Surplus.

Pre-Closing Adjustments. (a) On or before the Closing Date, Periodic Lease Rent, Allocated Rent, Proportional Rent, Section 467 Loan Balance, Section 467 Interest and Termination Values shall be adjusted, either upward or downward, in accordance with the Facility Lease: (i) at PPL Montana's option, to re-optimize the Lease Debt; and (ii) to reflect any changes in the Pricing Assumptions, including (x) an initial interest rate on the Lessor Note which is different from the applicable Lease Debt Rate set forth in the Pricing Assumptions, (y) an increase in the Transaction Costs from the amount assumed in the Pricing Assumptions, unless PPL Montana has elected to pay such increase, provided that, in connection with any such election, the Owner Participant shall have the right to allocate which expenses will be paid by PPL Montana, and (z) a scheduled Closing Date other than the Closing Date in the Pricing Assumptions; and (iii) at the request of PPL Montana or the Owner Participant to reflect any enactment, promulgation, release or adoption of, amendment to or change in the Code, Treasury Regulations, Revenue Rulings or Revenue Procedures ("Tax Law Change") enacted prior to the Closing; provided that if any adjustment required by this paragraph would cause (x) on an After-Tax Basis the net present value of Basic Lease Rent on a percentage basis discounted at 6% to increase by more than 100 basis points or (y) the total Periodic Lease Rent to increase by more than 2%, PPL Montana shall not be obligated to close the Transaction. (b) Any adjustment pursuant to this Section 14.2 shall be made in a manner that is consistent with any "uneven rent" safe harbor then existing under Section 467 of the Code or the regulations promulgated thereunder and shall be calculated (A) to preserve the Owner Participant's Net Economic Return through the Fixed Lease Term and (B) to maintain operating lease treatment for PPL Montana; provided, however, that to the extent it is not possible as the Transaction is then structured to achieve both (A) and (B), the Owner Lessor, the Owner Participant and PPL Montana shall work in good faith to restructure the Transaction in a manner that would achieve both results; and provided, further, that to the extent consistent with preserving both such objectives, all adjustments shall at the option of PPL Montana be calculated to minimize (x) the average annual Periodic Lease Rent over the Fixed Lease Term for PPL Montana's GAAP accounting purposes and/or (y) the present ...

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.