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).
Pro Forma Balance Sheet; Financial Statements The Lenders shall have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated financial statements of the Borrower and its Subsidiaries for the most recently ended fiscal year and (iii) unaudited interim consolidated financial statements of the Borrower and its Subsidiaries for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are available.
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.
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).
Subsequent Financial Statements The Company shall consult with Parent prior to making publicly available its financial results for any period after the date of this Agreement and prior to filing any Company SEC Documents after the date of this Agreement, it being understood that Parent shall have no liability by reason of such consultation.
Pro Forma Financial Statements Agent shall have received a copy of the Pro Forma Financial Statements which shall be satisfactory in all respects to Lenders;
Financial Statements; Undisclosed Liabilities (i) Schedule 4(j) sets forth (A) the unaudited consolidated balance sheet of the Company as of September 30, 1999 (the "Company Balance Sheet"), and the unaudited consolidated statement of income of the Company for the 9 month period ended September 30, 1999, and (B) the audited consolidated balance sheets of the Company as of December 31, 1997 and 1998, and the audited consolidated statements of income of the Company for the period August 25 to December 31, 1997 and for the year ended December 31, 1998, together with the notes to such financial statements (the financial statements described in clauses (A) and (B) above, together with any notes to such financial statements, are collectively referred to herein as the "Company Financial Statements"). The Company Financial Statements are in all material respects in accordance with the books and records of the Company and its consolidated Subsidiaries and have been prepared in conformity with generally accepted accounting principles consistently applied throughout the periods indicated (except in each case as described in the notes thereto) and on that basis fairly present in all material respects (subject, in the case of the unaudited statements referred to in (A) above, to normal, recurring year-end adjustments) the financial condition and results of operations of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods indicated.
(ii) The Company and its consolidated Subsidiaries do not have any liabilities or obligations of any nature (whether accrued, absolute, contingent, threatened or otherwise), except (A) as disclosed, reflected or reserved against in the Company Balance Sheet, (B) items set forth in Schedule 4(j), (C) liabilities and obligations incurred in the ordinary course of business consistent with past practice since the date of the Company Balance Sheet that would not, individually or in the aggregate, result in a Company Material Adverse Effect and (D) Taxes (as defined in Section 4(A)(l)) with respect to the period after the date of the Company Balance Sheet. Without limiting the generality of the foregoing, the Company has no contingent obligations in excess of $60,000 with respect to any assets purchased by the Company pursuant to the agreement between the Company and DeKalb Office Environments with respect to purchases of Steelcase furniture.
(iii) Except as set forth in Schedule 4(j), the amount of all accounts receivable, including unbilled invoices which are reflected as accounts receivable on the Company Financial Statements, due, or recorded in the Company Balance Sheet as being due to the Company and its Subsidiaries (less the amount of any provision or reserve therefor made in the Company Balance Sheet), are fully collectible in the normal course of business.
Year-End Statements As soon as available and in any event within 5 days after the same is required to be filed with the Securities and Exchange Commission (but in no event later than 120 days after the end of each fiscal year of the Parent), the audited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income, shareholders’ equity and cash flows of the Parent and its Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the end of and for the previous fiscal year, all of which shall be (a) certified by the chief financial officer or chief accounting officer of the Parent, in his or her opinion, to present fairly, in accordance with GAAP and in all material respects, the consolidated financial position of the Parent, the Borrower and its other Subsidiaries as at the date thereof and the results of operations for such period and (b) accompanied by the report thereon of an Approved Accounting Firm, whose certificate shall be unqualified and in scope and substance reasonably satisfactory to the Administrative Agent and who shall have authorized the Borrower to deliver such financial statements and certification thereof to the Administrative Agent and the Lenders pursuant to this Agreement; provided, however, the Parent shall not be required to deliver an item required under this Section if such item is contained in a Form 10-K filed by the Parent with the Securities and Exchange Commission (or any Governmental Authority substituted therefore) and is publicly available to the Administrative Agent and the Lenders.
Interim Financial Statements The unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of March 31, 2010 and the related unaudited consolidated statements of income and cash flows for the three months then ended fairly present, in conformity with GAAP applied on a basis consistent with the financial statements referred to in subsection (a) of this Section, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such three-month period (subject to normal year-end audit adjustments).
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.
