Common use of Calculation of Estimated Purchase Price Clause in Contracts

Calculation of Estimated Purchase Price. Not less than 10 Business Days prior to the Closing Date, the Seller shall deliver to Buyer its good faith calculation of the Base Purchase Price, with estimated adjustments pursuant to Section 2.02(b) and Section 2.02(c) (the “Preliminary Purchase Price”) and shall deliver to Buyer a schedule showing its calculation of the Preliminary Purchase Price (including the estimated adjustments to the Base Purchase Price pursuant to Section 2.02(b) and Section 2.02(c)). During the five (5) Business Day period after delivery of Seller’s calculation of the Preliminary Purchase Price, Seller shall provide Buyer and its Representatives with such information and access to such personnel of the Seller Entities, the Guarantor and the Companies as Buyer may reasonably request in order to calculate the Preliminary Purchase Price. If in good faith Buyer disagrees with Seller’s calculation of the Preliminary Purchase Price, it shall deliver to Seller a written notice of disagreement (a “Notice of Disagreement”) and its good faith calculation, based on the information available to it, of the Preliminary Purchase Price. If Buyer delivers a Notice of Disagreement on or prior to the fifth Business Day after delivery of Seller’s calculation of the Preliminary Purchase Price, the Parties shall negotiate in good faith during the three (3) Business Day period following delivery of the Notice of Disagreement as to the calculation of the Preliminary Purchase Price. If the Parties agree in writing to such calculation during such three Business Day period, the “Estimated Purchase Price” for purposes of this Agreement shall be the Preliminary Purchase Price as agreed to by the Parties. If the Parties do not agree in writing to such calculation prior to the expiration of such three Business Day period, the Closing shall nonetheless occur and the “Estimated Purchase Price” for purposes of this Agreement shall be the average of Seller’s calculation of the Preliminary Purchase Price and Buyer’s calculation of the Preliminary Purchase Price. In the event that Buyer does not deliver a Notice of Disagreement prior to the expiration of the five Business Day period referred to above, the “Estimated Purchase Price” for purposes of this Agreement shall be Seller’s calculation of the Preliminary Purchase Price. If the Estimated Purchase Price is the average of Seller’s calculation of the Preliminary Purchase Price and Buyer’s calculation of the Preliminary Purchase Price, at the Closing, Buyer shall deposit with an escrow agent reasonably satisfactory to Buyer and Seller (the “Escrow Agent”) an amount equal to the difference between the Seller’s calculation and such average (the “Escrow Amount”), and such amount shall be held and released in accordance with the terms of the Escrow Agreement (the “Escrow Agreement”), which will be in form and substance reasonably satisfactory to Buyer, Seller and the Escrow Agent. The Parties agree that the Escrow Agreement shall contemplate that (a) in the event that Estimated Purchase Price exceeds the Final Purchase Price, the parties shall cause the Escrow Amount (together with interest thereon and without otherwise limiting the obligations of Seller under Section 2.06) to be paid to the Buyer and (b) in the event that the Final Purchase Price exceeds the Estimated Purchase Price (the “Excess Amount”), the parties shall cause the Escrow Amount (together with interest thereon earned in accordance with the Escrow Agreement and in partial satisfaction of Buyer’s obligations under Section 2.06 to the extent that the Excess Amount exceeds the Escrow Amount (i.e., the Buyer shall also be responsible to pay the amount by which the Excess Amount exceeds the Escrow Amount)) to be paid to Seller; provided that in the case of clause (b), in the event that the Escrow Amount exceeds the Excess Amount, a portion of the Escrow Amount (together with interest on such portion earned in accordance with the Escrow Agreement) equal to the Excess Amount shall be paid to Seller in full satisfaction of Buyer’s obligations under Section 2.06 and the remaining portion of the Escrow Amount (together with interest thereon earned in accordance with the Escrow Agreement) shall be paid to Buyer. Nothing in this Section 2.08 shall be deemed to prevent application of Section 2.06 with respect to the post-Closing adjustment.