Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc (a) The audited annual and unaudited interim financial statements (as to the Borrower and as to its Subsidiaries on a combined basis) delivered to the Banks pursuant to Section 5.14(i) or Sections 8.01(b) and (c), as applicable, present fairly in all material respects the financial condition of the relevant Persons at the dates of said statements and the results for the periods covered thereby. All such financial statements have been prepared in accordance with GAAP consistently applied and the financial statements as of and for the fiscal years have been audited by and accompanied by the opinion of Ernst & Young LLP, independent public accountants, or such other independent certified public accountants of recognized national standing reasonably acceptable to the Agents. (b) Since September 30, 2001, after giving effect to the Transactions, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect. (c) On and as of the Effective Date, after giving effect to the Indebtedness (including the Loans) being incurred and Liens created by the Borrower in connection therewith (assuming the full utilization of all Commitments on the Effective Date), (a) the sum of the assets, at a going business value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that would be obtained for such assets within such period by a capable and diligent businessman from an interested buyer who is willing to purchase under ordinary selling conditions), of the Borrower will exceed its debts; (b) the Borrower has not incurred and does not intend to incur, and does not believe that it will incur, debts beyond its ability to pay such debts as such debts mature; and (c) the Borrower will have sufficient capital with which to conduct its business. For purposes of this Section 7.05(c), "debt" means any liability on a claim, and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured; provided that to the extent any such "claim" is not fixed, liquidated and contingent, the amount thereof shall equal the Borrower's good faith estimate of the maximum amount thereof.
Complete Portfolio Holdings From Shareholder Reports Containing a Summary Schedule of Investments; and
Closing Financial Statements At least eight Business Days prior to the Effective Time of the Merger, Malvern shall provide First Bank with Xxxxxxx’s consolidated financial statements presenting the financial condition of Malvern and its Subsidiaries as of the close of business on the last day of the last month ended prior to the Effective Time of the Merger and Malvern’s consolidated results of operations for the period from January 1, 2022 through the close of business on the last day of the last month ended prior to the Effective Time of the Merger (the “Closing Financial Statements”); provided, that if the Effective Time of the Merger occurs on or before the 15th Business Day of the month, Xxxxxxx shall have provided consolidated financial statements as of and through the second month preceding the Effective Time of the Merger. Such financial statements shall be accompanied by a certificate of Xxxxxxx’s chief financial officer, dated as of the date of delivery, to the effect that such financial statements continue to reflect accurately, as of the date of the certificate, the financial condition of Malvern in all material respects. Such financial statements shall have been prepared in all material respects in accordance with GAAP, and reflect all period-end accruals and other adjustments. Such Closing Financial Statements shall also reflect as of their date (a) accruals for (i) all fees and expenses of all attorneys, accountants, investment bankers and other advisors and agents for Malvern for services rendered in connection with the transactions contemplated by this Agreement, (ii) any employee severance, retention or change-in-control payments or expenses consistent with the terms of this Agreement, (iii) any payment made or expense accrued for the purchase of a directors’ and officers’ liability insurance policy pursuant to this Agreement, (iv) other third-party costs, fees and expenses incurred or accrued by Malvern in connection with the transactions contemplated by this Agreement, and in each case, paid by Xxxxxxx or payable by Malvern prior to the Effective Time, (v) losses incurred or accrued by Xxxxxxx relating to the loans listed in Section 8.2(f)(1) of Malvern’s Disclosure Memorandum, (vi) costs, fees expenses, or any other amounts or payments, incurred or accrued by Malvern in connection with the matter set forth in Section 8.2(f)(2) of Malvern’s Disclosure Memorandum, (vii) changes in accumulated other comprehensive income from September 30, 2022 through the Closing Date, and (viii) changes to changes to GAAP or regulatory accounting requirements, including GAAP shareholders’ equity as a result of the initial adoption of the Current Expected Credit Losses (CECL) Methodology and (b) the shareholders’ equity referenced in Section 8.2(f).
Closing Date Balance Sheet (i) As soon as practicable after the Effective Date, but in no event later than forty-five (45) days after the Closing Date, Purchaser shall cause its independent certified public accountants ("Purchaser's Accountants") to prepare and deliver to Sellers a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Acquired Companies as of the opening of business on the Effective Date. The Draft Closing Date Balance Sheet (i) shall be prepared in accordance with GAAP and AICPA review standards applied on a basis consistent with the preparation of the financial statements described in Section 5.4 hereof but without regard to the transactions contemplated by this Agreement, and (ii) shall set forth the total liabilities (excluding any tax liability of the Company resulting from Purchaser's election to treat the stock purchase as a purchase of assets under the provisions of Section 338 of the Internal Revenue Code) of the Acquired Companies as of the opening of business on the Effective Date (the "Closing Date Total Liabilities") and the stockholder's equity (defined as the difference between the Acquired Companies' assets minus their total liabilities) of the Acquired Companies as of the opening of business on the Effective Date (the "Closing Date Stockholder's Equity"). (ii) If Sellers holding a majority of the Shares (the "Requisite Sellers") have any objections to the Draft Closing Date Balance Sheet, they will deliver a statement describing in detail their objections to the Purchaser within thirty (30) days after receiving the Draft Closing Date Balance Sheet. If no such objections are delivered by the Requisite Sellers within such thirty (30) day period, the Draft Closing Date Balance Sheet shall be deemed accepted by the Sellers. The Purchaser and the Requisite Sellers will use reasonable efforts to resolve any such objections themselves. If the Purchaser and the Requisite Sellers do not obtain a final resolution within thirty (30) days after the Purchaser has received the statement of objections, however, the Purchaser and the Requisite Sellers will select an accounting firm mutually acceptable to them to resolve any remaining objections. If the Purchaser and the Requisite Sellers are unable to agree on the choice of an accounting firm, they will select a nationally-recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the Parties. The Purchaser will revise the Draft Closing Date Balance Sheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.3(a)(ii). The ``Closing Date Balance Sheet'' shall mean the Draft Closing Date Balance Sheet together with any revisions thereto pursuant to this Section 2.3(a)(ii).
No Material Deterioration in Financial Condition; Financial Statements All consolidated financial statements for Borrower and its Subsidiaries, delivered to Collateral Agent fairly present, in conformity with GAAP, in all material respects the consolidated financial condition of Borrower and its Subsidiaries, and the consolidated results of operations of Borrower and its Subsidiaries. There has not been any material deterioration in the consolidated financial condition of Borrower and its Subsidiaries since the date of the most recent financial statements submitted to any Lender.
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.
Books and Records; Certain Funds Received After the Cut-Off Date From and after the sale of the Mortgage Loans to the Purchaser, record title to each Mortgage (other than with respect to any Outside Serviced Mortgage Loan) and each Note shall be transferred to the Trustee subject to and in accordance with this Agreement. Any funds due after the Cut-Off Date in connection with a Mortgage Loan received by the Seller shall be held in trust on behalf of the Trustee (for the benefit of the Certificateholders) as the owner of such Mortgage Loan and shall be transferred promptly to the Certificate Administrator. All scheduled payments of principal and interest due on or before the Cut-Off Date but collected after the Cut-Off Date, and all recoveries and payments of principal and interest collected on or before the Cut-Off Date (only in respect of principal and interest on the Mortgage Loans due on or before the Cut-Off Date and principal prepayments thereon), shall belong to, and shall be promptly remitted to, the Seller. The transfer of each Mortgage Loan shall be reflected on the Seller’s balance sheets and other financial statements as the sale of such Mortgage Loan by the Seller to the Purchaser. The Seller intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes. Following the transfer of the Mortgage Loans by the Seller to the Purchaser, the Seller shall not take any actions inconsistent with the ownership of the Mortgage Loans by the Purchaser and its assignees. The transfer of each Mortgage Loan shall be reflected on the Purchaser’s balance sheets and other financial statements as the purchase of such Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat the transfer of each Mortgage Loan from the Seller as a purchase for tax purposes. The Purchaser shall be responsible for maintaining, and shall maintain, a set of records for each Mortgage Loan which shall be clearly marked to reflect the transfer of ownership of each Mortgage Loan by the Seller to the Purchaser pursuant to this Agreement. It is expressly agreed and understood that, notwithstanding the assignment of the Loan Documents, it is expressly intended that the Seller will receive the benefit of any securitization indemnification provisions in the Loan Documents.
Master Servicer’s Financial Statements and Related Information For each year this Agreement is in effect, the Master Servicer shall submit to the Trustee, any NIMS Insurer, each Rating Agency and the Depositor a copy of its annual unaudited financial statements on or prior to March 15 of each year, beginning March 15, 2006. Such financial statements shall include a balance sheet, income statement, statement of retained earnings, statement of additional paid-in capital, statement of changes in financial position and all related notes and schedules and shall be in comparative form, certified by a nationally recognized firm of Independent Accountants to the effect that such statements were examined and prepared in accordance with generally accepted accounting principles applied on a basis consistent with that of the preceding year.
Financial Statements; Servicing Facility In connection with marketing the Mortgage Loans, the Purchaser may make available to a prospective Purchaser a Consolidated Statement of Operations of the Company for the most recently completed two fiscal years for which such a statement is available, as well as a Consolidated Statement of Condition at the end of the last two fiscal years covered by such Consolidated Statement of Operations. The Company also shall make available any comparable interim statements to the extent any such statements have been prepared by or on behalf of the Company (and are available upon request to members or stockholders of the Company or to the public at large). The Company also shall make available to Purchaser or prospective Purchaser a knowledgeable financial or accounting officer for the purpose of answering questions respecting recent developments affecting the Company or the financial statements of the Company, and to permit any prospective Purchaser to inspect the Company's servicing facilities for the purpose of satisfying such prospective Purchaser that the Company has the ability to service the Mortgage Loans as provided in this Agreement.
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.
