Common use of Closing Purchase Price Clause in Contracts

Closing Purchase Price. (i) As soon as practicable after the execution and delivery of this Agreement by the Contract Parties, but in no event later than five (5) days prior to the Closing Date, the Seller shall cause a consolidated divisional balance sheet for the Companies as at December 31, 1999 to be prepared in accordance with GAAP, applying the accounting policies and methods set forth on Annex III, shall cause such balance sheet to be audited by the Seller's Auditors pursuant to a special audit procedure relating to such balance sheet and shall cause such audited balance sheet to be delivered to the Seller, together with a report of the Seller's Auditors with respect thereto, which report shall be unqualified except to the extent of any customary limitations stated therein in connection with the limited scope of such special audit procedure (such audited balance sheet and auditors' report being referred to herein collectively as the "AUDITED BALANCE SHEET"). The Seller shall cause the Audited Balance Sheet to be delivered to the Buyer within one (1) Business Day after the Seller's receipt thereof. By no later than two (2) Business Days prior to the Closing Date, the Seller shall deliver to the Buyer a statement (which may include accruals for amounts not yet incurred) setting forth the nature and amount of each Pre-Closing Seller Cost (the "PRE-CLOSING SELLER COST STATEMENT"). (ii) At the Closing, the Base Purchase Price shall be adjusted on a dollar-for-dollar basis as follows: (A) if the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet exceeds the Net Assets Reference Amount, the Base Purchase Price shall be increased by the amount of such excess, and if the Net Assets Reference Amount exceeds the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet, the Base Purchase Price shall be reduced by the amount of such excess, and (B) the Base Purchase Price as adjusted pursuant to clause (A) above shall be increased by the aggregate amount of the Pre-Closing Seller Costs set forth on the Pre-Closing Seller Cost Statement.

Closing Purchase Price. On or before the date that is three (i) As soon as practicable after the execution and delivery of this Agreement by the Contract Parties, but in no event later than five (5) days prior to the Closing Date, the Seller shall cause a consolidated divisional balance sheet for the Companies as at December 31, 1999 to be prepared in accordance with GAAP, applying the accounting policies and methods set forth on Annex III, shall cause such balance sheet to be audited by the Seller's Auditors pursuant to a special audit procedure relating to such balance sheet and shall cause such audited balance sheet to be delivered to the Seller, together with a report of the Seller's Auditors with respect thereto, which report shall be unqualified except to the extent of any customary limitations stated therein in connection with the limited scope of such special audit procedure (such audited balance sheet and auditors' report being referred to herein collectively as the "AUDITED BALANCE SHEET"). The Seller shall cause the Audited Balance Sheet to be delivered to the Buyer within one (1) Business Day after the Seller's receipt thereof. By no later than two (23) Business Days prior to the anticipated Closing Date (but no earlier than the date that is seven (7) Business Days prior to the anticipated Closing Date), the Seller shall prepare and deliver to the Buyer Purchaser a statement (which may include accruals for amounts not yet incurredthe “Closing Purchase Price Statement”), setting forth (a) the Estimated Closing Working Capital, (b) the Estimated Closing Indebtedness (including the portion thereof, if any, comprising Funded Indebtedness), (c) the Estimated Closing Cash, (d) the Estimated Transaction Expenses and (e) the resulting calculation of the Purchase Price as of the Closing Date (such calculation, the “Closing Purchase Price”), together with reasonable supporting detail. The Closing Purchase Price Statement shall be accompanied by a certificate of an executive officer of Seller (x) stating that the Closing Purchase Price Statement has been prepared in accordance with this Agreement, including the Accounting Principles and the definitions set forth herein and (y) setting forth the nature amount due to, and amount bank wire instructions for, each Person entitled to any payment at Closing pursuant to Section 2.5(d). Following delivery of each Pre-the Closing Seller Cost (the "PRE-CLOSING SELLER COST STATEMENT"). (ii) At the Closing, the Base Purchase Price Statement, Seller shall be adjusted on a dollar-for-dollar basis as follows: (A) if afford Purchaser and its Representatives reasonable access, upon reasonable notice and during normal business hours, to the amount books and records to the extent related to the preparation of the Net Assets Closing Purchase Price Statement and to Seller’s and its Affiliates’ appropriate personnel involved in the preparation of the Companies as reflected on the Audited Balance Sheet exceeds the Net Assets Reference Amount, the Base Closing Purchase Price Statement. Seller shall be increased by consider in good faith any reasonable comments Purchaser has to the amount of such excess, and if the Net Assets Reference Amount exceeds the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet, the Base Closing Purchase Price shall Statement and, to the extent Seller reasonably deems it to be reduced by appropriate, revise the amount of such excess, and (B) the Base Closing Purchase Price as adjusted pursuant Statement to clause (A) above reflect such comments. Any such revised Closing Purchase Price Statement shall be increased by constitute the aggregate amount Closing Purchase Price Statement for all purposes of the Pre-Closing Seller Costs set forth on the Pre-Closing Seller Cost Statementthis Agreement.

Closing Purchase Price. (ia) As soon as practicable after the execution and delivery of this Agreement by the Contract Parties, but in no event later than five At least ten (5) days prior to the Closing Date, the Seller shall cause a consolidated divisional balance sheet for the Companies as at December 31, 1999 to be prepared in accordance with GAAP, applying the accounting policies and methods set forth on Annex III, shall cause such balance sheet to be audited by the Seller's Auditors pursuant to a special audit procedure relating to such balance sheet and shall cause such audited balance sheet to be delivered to the Seller, together with a report of the Seller's Auditors with respect thereto, which report shall be unqualified except to the extent of any customary limitations stated therein in connection with the limited scope of such special audit procedure (such audited balance sheet and auditors' report being referred to herein collectively as the "AUDITED BALANCE SHEET"). The Seller shall cause the Audited Balance Sheet to be delivered to the Buyer within one (1) Business Day after the Seller's receipt thereof. By no later than two (210) Business Days prior to the Closing Date, the Seller shall prepare and deliver to the Buyer a statement consistent with the sample statement set forth in Exhibit A (which may include accruals for amounts not yet incurredthe “Estimates Statement”) setting forth, in reasonable detail, a good faith calculation of the Seller’s estimate of (i) Closing Cash (“Estimated Closing Cash”), (ii) Company Transaction Expenses (“Estimated Company Transaction Expenses”), (iii) Closing Indebtedness (“Estimated Closing Indebtedness”) and (iv) Closing Working Capital (“Estimated Closing Working Capital”), in each case, together with such schedules and data with respect to the determination thereof as may be appropriate to support the calculations set forth in the nature Estimates Statement. The Estimates Statement shall also include the Seller’s calculation of the Closing Purchase Price based on the amounts included in the Estimates Statement. The Estimates Statement shall be prepared in accordance with (x) the same accounting principles, policies, methods and amount of each Pre-Closing Seller Cost procedures, consistently applied, as those used in the Company Balance Sheet and (y) to the extent not addressed by the immediately preceding clause (x), GAAP (the "PRE-CLOSING SELLER COST STATEMENT"“Accounting Principles”). During the period after the delivery of the Estimates Statement and prior to the Closing Date, the Buyer shall have an opportunity to review and provide comments to the Estimates Statement and the Seller shall and shall cause the Company to cooperate in a reasonable manner with the Buyer and consider in good faith any reasonable comments provided by the Buyer in writing; provided that in no event shall any review of the Estimates Statement by the Buyer, or any dispute relating thereto, delay or prevent the Closing. If the Seller accepts any such comments, it shall deliver to the Buyer an updated version of the Estimates Statement. (b) The aggregate consideration payable by the Buyer at the Closing (the “Closing Purchase Price”) shall equal (i) $60,000,000 (the “Base Purchase Price”), plus (ii) At the Closing, the Base Purchase Price shall be adjusted on a dollar-for-dollar basis as follows: (A) if the amount of Estimated Closing Cash, plus (iii) the Net Assets of amount, if any, by which Estimated Closing Working Capital exceeds Target Maximum Working Capital, minus (iv) the Companies as reflected on the Audited Balance Sheet amount, if any, by which Target Minimum Working Capital exceeds the Net Assets Reference AmountEstimated Closing Working Capital, the Base Purchase Price shall be increased by minus (v) the amount of such excessEstimated Company Transaction Expenses, and if the Net Assets Reference Amount exceeds minus (vi) the amount of the Net Assets of the Companies as reflected on the Audited Balance SheetEstimated Closing Indebtedness, the Base Purchase Price shall be reduced by the amount of such excess, and minus (Bvii) the Base Purchase Price as adjusted pursuant to clause (A) above shall be increased by the aggregate amount of the Pre-Closing Seller Costs set forth on the Pre-Closing Seller Cost StatementEscrow Amount, in each case, determined without duplication.

Closing Purchase Price. (ia) As soon as practicable after the execution and delivery of this Agreement by the Contract Parties, but in no event later than five At least ten (510) days prior to the Closing Date, the Seller shall cause a consolidated divisional balance sheet for the Companies as at December 31, 1999 to be prepared and delivered to Buyer an estimated Net Worth Statement of the Company, as of the Closing Date, which shall be prepared in accordance the same format as the Pro Forma Net Worth Statement (“Proposed Estimated Net Worth Statement”), which shall include a calculation of the amount of the Net Worth of the Company as of the Closing Date. Buyer shall be given an opportunity to review and comment on the Proposed Estimated Closing Net Worth Statement and Seller shall provide Buyer with GAAP, applying the accounting policies and methods set forth on Annex III, shall cause such balance sheet to be audited by the Seller's Auditors pursuant to a special audit procedure relating access to such balance sheet information and shall cause such audited balance sheet to be delivered to the Seller, together with a report of the Seller's Auditors with respect thereto, which report shall be unqualified except to the extent of any customary limitations stated therein personnel as Buyer may reasonably request in connection with such review and comment. Buyer shall provide any comments on the limited scope of such special audit procedure (such audited balance sheet and auditors' report being referred to herein collectively as the "AUDITED BALANCE SHEET"). The Seller shall cause the Audited Balance Sheet to be delivered to the Buyer within one (1) Business Day after the Seller's receipt thereof. By no later than Proposed Estimated Closing Net Worth Statement at least two (2) Business Days prior to the Closing Date and the Parties shall negotiate in good faith a resolution of any differences in the amounts stated in the Proposed Estimated Closing Net Worth Statement; it being acknowledged that Seller shall have the ultimate responsibility for determining what, if any, changes will be reflected on the Estimated Closing Net Worth Statement. The Net Worth Statement of the Company, estimated as of the Closing Date, and as revised to reflect any revisions thereto agreed to by the Parties, shall be the “Estimated Closing Net Worth Statement.” (b) The aggregate purchase price to be paid by Buyer to Seller at the Closing in consideration of the transfer by Seller of the Shares and other transactions contemplated by this Agreement shall deliver to be the Buyer a statement sum of (which may include accruals for amounts not yet incurredi), (ii), (iii) setting and (iv) below: (i) the Net Worth of the Company as set forth on the nature and amount of each Pre-Estimated Closing Seller Cost Net Worth Statement (the "PRE-CLOSING SELLER COST STATEMENT"“Estimated Closing Net Worth Amount”)., (ii) At $9,750,000 in cash (the Closing“Fixed Amount”), (iii) $3,588,000 representing the purchase price of the Company IP/IT Assets (the “IT Purchase Price”), and (iv) $3,500,000 representing the value of the Company’s deferred tax asset (the “Deferred Tax Asset Value”, and together with the Estimated Closing Net Worth Amount the Fixed Amount and the IT Purchase Price, the Base “Closing Purchase Price Price”); provided, however, that the Estimated Closing Net Worth Amount shall be adjusted on a dollar-for-dollar basis subject to adjustment after the Closing as follows: set forth in Section 2.7. (Ac) if the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet exceeds the Net Assets Reference AmountThe total consideration paid to Seller pursuant to this Section 2.4, the Base Purchase Price shall be increased by the amount of such excess, and if the Net Assets Reference Amount exceeds the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet, the Base Purchase Price shall be reduced by the amount of such excess, and (B) the Base Purchase Price as adjusted pursuant to clause (A) above Section 2.7, shall be increased by known as the aggregate amount of the Pre-Closing Seller Costs set forth on the Pre-Closing Seller Cost Statement“Purchase Price.”

Closing Purchase Price. (a) The Closing Purchase Price for the Credit Card Assets (in addition to the Assumed Liabilities) shall be the sum of the following: (i) As an amount which is equal to 100% multiplied by the Outstanding Book Balance of the Account Receivables and the Securitization Receivables as of the Preliminary Cut-Off Time; provided that the Accrued Interest component of the Outstanding Book Balance shall be estimated for purposes of determining the Closing Purchase Price in the manner set forth in Annex I to Exhibit B hereto; plus (ii) an amount which is equal to the Net Book Value of the Equipment as reflected on the Closing Equipment Schedule delivered pursuant to Section 2.3; plus (iii) an amount which is equal to the Net Book Value of the Real Property owned by any of the Sellers as reflected on the Closing Real Property Schedule delivered pursuant to Section 2.3; plus (iv) an amount which is equal to the Securitization Cash Collateral as of the Preliminary Cut-Off Time; plus (v) an amount equal to the lesser of (A) the Consumable Inventory Expense Reimbursement as reflected on the Closing Consumable Inventory Schedule delivered pursuant to Section 2.3, and (B) $3,000,000; and minus (vi) the outstanding principal balance of the certificates of beneficial interest in the Securitization Trust owned by the Securitization Certificateholders as of the Preliminary Cut-Off Time. (b) The Closing Purchase Price shall be as reflected on the Preliminary Closing Statement and shall be subject to post-closing adjustments in accordance with Section 3.4 hereof. (c) The Closing Purchase Price shall be allocated among the Credit Card Assets by Buyer as soon as practicable after the execution Closing Date, subject to Seller's acceptance which shall not be unreasonably withheld (and delivery shall be adjusted as soon as possible following any post-closing adjustments as described in Section 3.4 hereof), in accordance with Section 1060 of this Agreement the Code and the regulations promulgated thereunder. Buyers and Sellers will file all applicable tax returns and other required tax related schedules and documents in accordance with such fair market values and allocations, and will not adopt or otherwise assert tax positions inconsistent therewith, except to the extent otherwise required by a taxing authority. (d) Notwithstanding the foregoing, in the event the Internal Revenue Service (or any similar state or local taxing authority) challenges any position taken by any Party in connection with the allocation contemplated by Section 2.4(c) hereof, such Party may settle or litigate such issue without the consent of the other Parties, provided, however, that any Party that receives any written notice from the Internal Revenue Service (or any similar state or local taxing authority) of any challenge to such allocation shall, not later than 10 days following receipt of each notice or correspondence relating thereto, provide written notice thereof to the other Parties hereunder. Without limiting the generality of the foregoing, Buyers shall deliver to Sellers a completed Internal Revenue Service Form 8594, in draft form and based on the Purchase Price Allocation not later than ninety (90) days after the Closing Date or at such later date as mutually agreed upon by the Contract PartiesParties hereto, for Sellers' review and approval, which approval shall not be unreasonably withheld. If, within sixty (60) days of Sellers' receipt of the draft Form 8594, Sellers shall not have objected in writing to such draft Form 8594, the draft Form 8594 shall become the final version Form 8594. If Sellers object in writing to the draft Form 8594 within such sixty (60) days, Buyers and Sellers shall negotiate in good faith to resolve the objections. If Buyers and Sellers shall not have agreed to the final version of Form 8594 within sixty (60) days after Sellers' objection, any disputed aspects of the draft Form 8594 shall be resolved by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the "Auditors") as soon as practicable but in no event later than five sixty (560) days prior to the Closing Date, earlier of (i) the Seller shall cause a consolidated divisional balance sheet for last date on which the Companies as at December 31, 1999 to Form 8594 may be prepared in accordance with GAAP, applying the accounting policies and methods set forth on Annex III, shall cause such balance sheet to be audited by the Seller's Auditors pursuant to a special audit procedure relating to such balance sheet and shall cause such audited balance sheet to be delivered to the Seller, together with a report of the Seller's Auditors with respect thereto, which report shall be unqualified except to the extent of any customary limitations stated therein in connection with the limited scope of such special audit procedure (such audited balance sheet and auditors' report being referred to herein collectively as the "AUDITED BALANCE SHEET"). The Seller shall cause the Audited Balance Sheet to be delivered to the Buyer within one (1) Business Day after the Seller's receipt thereof. By no later than two (2) Business Days prior to the Closing Date, the Seller shall deliver to the Buyer a statement (which may include accruals for amounts not yet incurred) setting forth the nature and amount of each Pre-Closing Seller Cost (the "PRE-CLOSING SELLER COST STATEMENT"). filed or (ii) At the Closing, last date on which either Buyers or Sellers (whichever is earlier) must file a Tax return relating to the Base Purchase Price transactions contemplated hereby. The decision of the Auditors shall be adjusted on a dollar-for-dollar basis as follows: (A) if final, and the amount costs, expenses and fees of the Net Assets of the Companies as reflected on the Audited Balance Sheet exceeds the Net Assets Reference Amount, the Base Purchase Price Auditors shall be increased borne equally by Sellers and Buyers. Sellers and Buyers each agree to file such final version Form 8594 with their respective tax returns for the amount of such excess, and if taxable year in which the Net Assets Reference Amount exceeds the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet, the Base Purchase Price shall be reduced by the amount of such excess, and (B) the Base Purchase Price as adjusted pursuant to clause (A) above shall be increased by the aggregate amount of the Pre-Closing Seller Costs set forth on the Pre-Closing Seller Cost Statementoccurs.

Closing Purchase Price. (i) As soon The Closing Purchase Price, adjusted for reasonable estimates of the adjustments for the Company's revolving line of credit, long term debt and Net Working Capital, shall be paid at Closing to KPR Holdings, as practicable after the execution and delivery of this Agreement by the Contract Parties, but in no event later than five (5) days prior to the Closing Date, agent for the Seller shall cause a consolidated divisional balance sheet for the Companies as provided in Section 5.14 hereof, by wire transfer of readily available funds to an account of KPR Holdings at December 31Wilmington Trust, 1999 to be prepared in accordance with GAAPWilmington, applying the accounting policies and methods set forth on Annex III, shall cause such balance sheet to be audited by the Seller's Auditors pursuant to a special audit procedure relating to such balance sheet and shall cause such audited balance sheet to be delivered to the Seller, together with a report of the Seller's Auditors with respect thereto, which report shall be unqualified except to the extent of any customary limitations stated therein in connection with the limited scope of such special audit procedure (such audited balance sheet and auditors' report being referred to herein collectively as the "AUDITED BALANCE SHEET")Delaware Account No. The Seller shall cause the Audited Balance Sheet to be delivered to the Buyer within one (1) Business Day after the Seller's receipt thereof. By no later than two (2) Business Days prior to the Closing Date, the Seller shall deliver to the Buyer a statement (which may include accruals for amounts not yet incurred) setting forth the nature and amount of each Pre2546-Closing Seller Cost 2572 (the "PRE-CLOSING SELLER COST STATEMENTPayment Account") in the amount of $25.0 million of the Closing Purchase Price plus deliver its promissory note to KPR Holdings, as agent for the Sellers, in the principal amount of the excess of the Closing Payment over $25.0 million of the Closing Purchase Price (collectively, the "Closing Payment"). (ii) At , which shall be payable on January 15, 1996, bearing interest at the Closingrate of 6% per annum and to be secured by a bank letter of credit; provided, the Base foregoing interest rate will be reduced by the actual rate per annum paid by Foodbrands to its Lender for the issuance of such letter of credit but not to exceed two and 75/100 percent (2.75%) per annum. The Promissory Note shall be in the form of Exhibit B attached hereto. On the fifth business day after the Closing Date Balance Sheet (as defined in Section 5.15 hereof) has been approved by Foodbrands pursuant to Section 5.15 and the adjustments made to determine the Adjusted Closing Purchase Price, the difference, if any, between the Closing Payment and the Adjusted Closing Purchase Price shall be adjusted on a dollar-for-dollar basis settled either (i) by wire transfer of immediately available funds from Foodbrands to KPR Holdings, for itself and as follows: (A) agent, if the amount of Closing Payment was less than the Net Assets of the Companies as reflected on the Audited Balance Sheet exceeds the Net Assets Reference Amount, the Base Adjusted Closing Purchase Price shall be increased or (ii) by the amount wire transfer of such excessimmediately available funds from KPR Holdings, for itself and as agent, to Foodbrands if the Net Assets Reference Amount exceeds Closing Payment was greater than the amount of the Net Assets of the Companies as reflected on the Audited Balance Sheet, the Base Adjusted Closing Purchase Price shall be reduced by the amount of such excess, and (B) the Base Purchase Price as adjusted pursuant to clause (A) above shall be increased by the aggregate amount of the Pre-Closing Seller Costs set forth on the Pre-Closing Seller Cost StatementPrice.