Final Closing Statement (a) On or before the date that is ninety (90) days following the Closing Date, Buyer or its representatives shall prepare a schedule setting forth its determination of Working Capital, Indebtedness and Seller Transaction Expenses (the “Final Closing Statement”) and shall deliver the Final Closing Statement to the Seller. Working Capital shall be determined disregarding any effects on the assets and liabilities of the Seller of (i) purchase accounting adjustments arising from or resulting as a consequence of the consummation of the transactions contemplated hereby or (ii) any cash, cash equivalents, or stock contributed to Seller by Buyer or any of its Affiliates on the Closing Date.
(b) Prior to the date which is thirty (30) days after Buyer’s delivery of the Final Closing Statement (the “Protest Date”), the Seller may deliver written notice to Buyer (the “Protest Notice”) setting forth any objections which the Seller may have to the Final Closing Statement. The Protest Notice shall specify in reasonable detail any contested amounts and the basis therefor and shall include a schedule setting forth the Seller’s determination of Working Capital, Indebtedness and Seller Transaction Expenses. If a Protest Notice is not delivered prior to the Protest Date, the Working Capital, Indebtedness and Seller Transaction Expenses as set forth on the Final Closing Statement shall be final, binding and non-appealable by the Sellers. If a Protest Notice is delivered prior to the Protest Date, any amounts not disputed therein shall be final, binding and non-appealable by the Seller. Upon receipt of the Final Closing Statement, the Seller and its accountants will be given reasonable access upon reasonable notice to the relevant books, records, workpapers and personnel during regular business hours for the purpose of verifying Working Capital, Indebtedness and Seller Transaction Expenses. The parties will thereafter negotiate any objections in the Protest Notice in good faith.
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; Closing Date Closing" and "Closing Date" have the meanings set forth in Section 5.3.
Initial Closing Date 3.1 A meeting shall take place on the Initial Closing Date at the offices of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such offices as the parties may agree at which the Seller shall deliver to the Security Trustee or its representative the following documents:
(a) two originals of the power of attorney substantially in the form set out in Schedule 5, duly executed by the Seller;
(b) a certified copy of each of the Insurance Acknowledgements (as defined in the Mortgage Sale Agreement dated 26 July 2000);
(c) a duly executed assignment of the MIG Policies (as defined in the Mortgage Sale Agreement dated 26 July 2000) from the Seller and a certified copy of a notice (the original of which shall be served by courier or by special delivery) of such assignment from the Seller to Carfax or such other insurer under the MIG Policies in the form (mutatis mutandis) set out in Schedules 8 and 9 respectively of the Mortgage Sale Agreement dated 26 July 2000 and a certified copy of consent to assignment of the MIG Policies (or acknowledgement that the Mortgages Trustee will be an insured under the MIG Policies following the assignment) from Carfax or such other insurers in such form as the Mortgages Trustee reasonably requires;
(d) a certified copy of the board minutes of the Seller authorising its duly appointed representatives to agree the sale of the Portfolio and authorising execution and performance of this Agreement, the Servicing Agreement, the other Transaction Documents and all of the documentation to be entered into pursuant to this Agreement;
(e) a duly executed assignment of rights against third parties in the form of the Assignment of Third Party Rights;
(f) a certified copy of the notice from the Seller to Carfax as to the proposed assignment of the MIG Policies; and
(g) a solvency certificate from an authorised signatory of the Seller dated as at the Initial Closing Date.
3.2 The Seller undertakes that, from the Initial Closing Date until the completion of the assignment in accordance with Clause 6.1, the Seller shall hold the Title Deeds and Customer Files relating to the Portfolio that are in its possession or under its control or held to its order to the order of the Mortgages Trustee or as the Mortgages Trustee shall direct.
3.3 Subject to fulfilment of the conditions referred to in Clauses 2.2 and 3.1, the Seller shall be paid the Purchase Price by telegraphic transfer as follows:
(a) the Initial Consideration shall be paid by Funding for and on behalf of the Mortgages Trustee on the Initial Closing Date; and
(b) the Deferred Consideration (including any Postponed Deferred Consideration) shall be paid by Funding for and on behalf of the Mortgages Trustee quarterly on the Interest Payment Dates (provided there are available funds and after the making of any provisions in accordance with normal accounting practice) in accordance with the Funding Pre- Enforcement Revenue Priority of Payments or, as the case may be, the Funding Post- Enforcement Priority of Payments.
3.4 The Seller shall provide all reasonable co-operation to the Mortgages Trustee, Funding and the Security Trustee to enable them to carry out their respective duties and enforce their rights under the Transaction Documents. Without prejudice to the generality of the foregoing, the Seller shall:
(a) upon reasonable prior notice and during normal office hours, permit the Mortgages Trustee, Funding, the Security Trustee and their authorised employees and agents and other persons nominated by the Security Trustee and approved by the Seller (such approval not to be unreasonably withheld or delayed) to review the Customer Files and the Title Deeds in relation to the Portfolio (subject to such person(s) agreeing to keep the same confidential but provided that disclosure shall be permitted to the professional advisors and auditors of the party making the disclosure and/or to the extent that such disclosure is required by law or for the purpose of any judicial or other proceedings); and/or
(b) give promptly all such information and explanations relating to the Loans and their Related Security as the Mortgages Trustee, Funding or the Security Trustee may reasonably request (including a list of the Loans and their Related Security in the Portfolio along with details of the location of the Title Deeds relating thereto), provided that, prior to completion in accordance with Clause 6, the Seller shall be under no obligation to provide any information or documentation to any person other than the Mortgages Trustee and/or the Security Trustee or their respective employees or allow such person access to the Customer Files or Title Deeds if to do so would result in a breach of the applicable Mortgage Terms or the Data Protection ▇▇▇ ▇▇▇▇.
Additional Closing i. The obligations of KiOR to sell the Notes, and of the Purchasers to purchase the Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following conditions:
(a) The notifications of the Purchasers and KiOR pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated; and
(b) Consummation of the transactions contemplated hereby or by the Transaction Documents shall not have been restrained, enjoined or otherwise prohibited or made illegal by, or conditioned upon the receipt of any approvals or consents from Governmental Authorities under, any applicable law.
ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before any Additional Closing, of each of the following conditions, unless otherwise waived by KiOR:
(a) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the applicable amount set forth opposite such Purchaser’s name under the heading “Additional Closing” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the Additional Closing. The Additional Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Purchase Price indicated thereon; and
(b) each of the representations and warranties of each Purchaser in this Agreement and the other Transaction Documents shall be true and correct on the date of the Additional Closing, and the occurrence of such Additional Closing shall be deemed to be a representation and warranty of each Purchaser that such representations and warranties are true and correct.
iii. The obligations of each Purchaser to purchase the Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following conditions, unless otherwise waived by such Purchaser:
(a) the Required Purchasers shall have determined that the Company shall have satisfied the applicable Milestone (as determined in the sole discretion of (and to the satisfaction of) the Required Purchasers);
(b) the representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of such Additional Closing, and no Default or Event of Default shall have occurred and be continuing as of the date of such Additional Closing; and
(c) the Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before such Additional Closing.