Common use of Determination of Post-Closing Adjustment Clause in Contracts

Determination of Post-Closing Adjustment. (a) As soon as practicable, but in any event no later than thirty (30) days after the Closing Date, Seller shall cause the Subsidiary to prepare a consolidated balance sheet (the "CLOSING DATE BALANCE SHEET") of the Subsidiary as of the Closing Date. The Closing Date Balance Sheet shall not give effect to the transactions contemplated by this Agreement and shall be prepared in accordance with GAAP consistent with the Subsidiary's Audited Financial Statements (as defined in Section 4.4(a)). After Closing, Purchaser and Subsidiary shall permit Seller and its representatives to have reasonable access to Subsidiary's books and records for preparation of the Closing Date Balance Sheet. (b) Seller shall cause Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ (the "AUDITOR") to audit as soon as practicable but no later than ninety (90) days after the Closing Date the Closing Date Balance Sheet as soon as possible after the completion thereof and Seller shall deliver to the Purchaser upon receipt of the Auditor's opinion with respect thereto, a copy of the Closing Date Balance Sheet and the Auditor's opinion. The Auditor's opinion shall state that the Closing Date Balance Sheet (i) has been audited in accordance with generally accepted auditing standards, (ii) has been prepared in accordance with GAAP and (iii) fairly presents the financial condition of the Subsidiary as of the Closing Date. The fees and expenses of the Auditor shall be paid by the Purchaser. (c) Concurrently with the delivery of the Auditor's opinion with respect to the Closing Date Balance Sheet, Seller shall cause the Auditor to prepare and deliver to the Purchaser a certificate setting forth the Post-Closing Adjustment (the "AUDITOR'S POST-CLOSING CERTIFICATE"). The "POST-CLOSING ADJUSTMENT" shall be an amount equal to (i) the Net Working Capital of the Subsidiary as of the Closing Date, as determined from the Closing Date Balance Sheet (the "CLOSING DATE NET WORKING CAPITAL AMOUNT"), minus (ii) $27,500,000 minus (iii) the amount of any Indebtedness other than Intercompany Amounts (for purposes of this Agreement the Purchaser agrees that all existing operating leases of Subsidiary, as determined for the Audited Financial Statements, are not capitalized leases).

Determination of Post-Closing Adjustment. (a) As soon as practicablereasonably practicable after the Closing Date, but in any event no not later than thirty sixty (3060) days after the Closing Date, Seller Buyer shall cause prepare and deliver to the Subsidiary to prepare Stockholder Representative a consolidated balance sheet statement (the "CLOSING DATE BALANCE SHEET"“Post-Closing Financial Statement”) which sets forth a good faith calculation of the Subsidiary (i) actual Cash of the Company as of immediately prior to the Closing (“Actual Cash”), (ii) actual Indebtedness of the Company as of immediately prior to the Closing (including any per diem interest accruals, prepayment fees, breakage costs and other Indebtedness amounts accrued or paid prior to or concurrently with the Closing) (“Actual Indebtedness”), (iii) actual Sellers’ Transaction Expenses (“Actual Sellers’ Transaction Expenses”) and (iv) actual Working Capital as of immediately prior to the Closing (“Actual Working Capital”), in each case as set forth on a schedule in reasonable detail, along with reasonable supporting documentation, and the resulting calculation of the Closing DateCash Consideration and an updated version of the Distribution Allocation Schedule reflecting such calculation. The Post-Closing Date Balance Sheet shall not give effect to the transactions contemplated by this Agreement and Financial Statement shall be prepared by Buyer in accordance with GAAP consistent the Accounting Methodology. The Stockholder Representative shall reasonably cooperate with the Subsidiary's Audited Financial Statements (as defined Buyer in Section 4.4(a)). After Closing, Purchaser and Subsidiary shall permit Seller and its representatives to have reasonable access to Subsidiary's books and records for preparation of the Post-Closing Date Balance Sheet. Financial Statement. In the event Buyer does not deliver the Post-Closing Financial Statement to the Stockholder Representative within sixty (b) Seller shall cause Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ (the "AUDITOR") to audit as soon as practicable but no later than ninety (9060) days after the Closing Date (or such later date as Buyer and the Closing Date Balance Sheet as soon as possible after Stockholder Representative mutually agree in writing), the completion thereof Estimated Cash, Estimated Indebtedness, Estimated Sellers’ Transaction Expenses, Estimated Working Capital, and Seller shall deliver to the Purchaser upon receipt of the Auditor's opinion with respect thereto, a copy calculation of the Closing Date Balance Sheet and Cash Consideration based on such amounts, as set forth in the Auditor's opinion. The Auditor's opinion shall state that the Preliminary Closing Date Balance Sheet (i) has been audited in accordance with generally accepted auditing standards, (ii) has been prepared in accordance with GAAP and (iii) fairly presents the financial condition of the Subsidiary as of the Closing Date. The fees and expenses of the Auditor Statement shall be paid by the Purchaser. (c) Concurrently with the delivery of the Auditor's opinion with respect to the Closing Date Balance Sheet“Final Cash”, Seller shall cause the Auditor to prepare and deliver to the Purchaser a certificate setting forth the Post-Closing Adjustment (the "AUDITOR'S POST-CLOSING CERTIFICATE"). The "POST-CLOSING ADJUSTMENT" “Final Indebtedness”, “Final Sellers’ Transaction Expenses”, “Final Working Capital”, respectively, which, in each case, shall be an amount equal deemed to (i) be final and binding on the Net Working Capital of the Subsidiary as of the Closing Date, as determined from the Closing Date Balance Sheet (the "CLOSING DATE NET WORKING CAPITAL AMOUNT"), minus (ii) $27,500,000 minus (iii) the amount of any Indebtedness other than Intercompany Amounts (for purposes of this Agreement the Purchaser agrees that all existing operating leases of Subsidiary, as determined for the Audited Financial Statements, are not capitalized leases)Parties.

Determination of Post-Closing Adjustment. (a) As soon as practicable, but in any event no later than thirty (30) days after the Closing Date, Seller shall cause the Subsidiary to prepare a consolidated balance sheet (the "CLOSING DATE BALANCE SHEET") of the Subsidiary as of the Closing Date. The Closing Date Balance Sheet shall not give effect to the transactions contemplated by this Agreement and shall be prepared in accordance with GAAP consistent with the Subsidiary's Audited Financial Statements (as defined in Section 4.4(a)). After Closing, Purchaser and Subsidiary shall permit Seller and its representatives to have reasonable access to Subsidiary's books and records for preparation of the Closing Date Balance Sheet. (b) Seller shall cause Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC (the "AUDITOR") to audit as soon as practicable but no later than ninety (90) days after the Closing Date the Closing Date Balance Sheet as soon as possible after the completion thereof and Seller shall deliver to the Purchaser upon receipt of the Auditor's opinion with respect thereto, a copy of the Closing Date Balance Sheet and the Auditor's opinion. The Auditor's opinion shall state that the Closing Date Balance Sheet (i) has been audited in accordance with generally accepted auditing standards, (ii) has been prepared in accordance with GAAP and (iii) fairly presents the financial condition of the Subsidiary as of the Closing Date. The fees and expenses of the Auditor shall be paid by the Purchaser. (c) Concurrently with the delivery of the Auditor's opinion with respect to the Closing Date Balance Sheet, Seller shall cause the Auditor to prepare and deliver to the Purchaser a certificate setting forth the Post-Closing Adjustment (the "AUDITOR'S POST-CLOSING CERTIFICATE"). The "POST-CLOSING ADJUSTMENT" shall be an amount equal to (i) the Net Working Capital of the Subsidiary as of the Closing Date, as determined from the Closing Date Balance Sheet (the "CLOSING DATE NET WORKING CAPITAL AMOUNT"), minus (ii) $27,500,000 minus (iii) the amount of any Indebtedness other than Intercompany Amounts (for purposes of this Agreement the Purchaser agrees that all existing operating leases of Subsidiary, as determined for the Audited Financial Statements, are not capitalized leases). (d) Following delivery to the Purchaser of the Auditor's Post-Closing Certificate and the Closing Date Balance Sheet, the Purchaser, Seller and their representatives shall have the right to review all such data and materials (including the Auditor's work papers) as is reasonably necessary to enable the Purchaser, Seller and their representatives to verify the accuracy of the Auditor's Post-Closing Certificate and the information contained therein. (e) If the Purchaser does not give notice in writing to Seller of its objections to any item or items in the Closing Date Balance Sheet or the Auditor's Post-Closing Certificate within forty-five (45) business days after its receipt of the Auditor's Post-Closing Certificate, then the Post-Closing Adjustment shall be deemed to be finally determined for purposes of this Agreement. (f) If the Purchaser gives notice in writing to Seller of its objections to any item or items in the Closing Date Balance Sheet or the Auditor's Post-Closing Certificate within forty-five (45) business days after its receipt of the Auditor's Post-Closing Certificate, Purchaser and the Seller shall endeavor to resolve all such objections within forty-five (45) business days after receipt of such notice. Each notice of objections shall outline in reasonable detail the basis for each objection and, wherever reasonably possible, the dollar amount involved. If such notice is timely given and Purchaser and the Seller are able to resolve the disputed matters, then the Post-Closing Adjustment as modified in accordance with the parties' agreement shall be deemed to be finally determined for purposes of this Agreement. (g) If Purchaser and the Seller are unable to resolve all such objections within such forty-five (45) business day period, then Purchaser and the Seller shall select a mutually agreed upon independent accounting firm (the "DISPUTE AUDITOR") (which shall be one of the "Big Five" accounting firms) to determine all items in dispute and to deliver a certificate to Purchaser and the Seller as soon as practicable, which certificate shall include such firm's determination of the Post-Closing Adjustment computed pursuant to and in accordance with the provisions of this Agreement, but which otherwise may be in such form and contain such information as such firm, in its sole discretion, deems necessary or appropriate. In resolving such disputes and providing such certificate, the Dispute Auditor shall employ such procedures as it, in its sole discretion, deems necessary or appropriate in the circumstances. (h) Upon the receipt by Purchaser and the Seller of the certificate of the Dispute Auditor pursuant to Section 3.5(g), the Post-Closing Adjustment shall be deemed to be finally determined for purposes of this Agreement and shall be binding upon the parties. (i) The fees and expenses of the Dispute Auditor shall be borne 50% by Purchaser and 50% by the Seller; provided that if the Dispute Auditor determines that one party's position is completely correct then such party shall not pay any of the fees, costs and expenses charged by the Dispute Auditor and the objecting party shall pay all of such fees, costs and expenses of the independent accounting firm. (j) The Purchase Price shall be decreased by the amount by which the Post-Closing Adjustment is negative or increased by the amount by which the Post-Closing Adjustment is positive. Buyer (if the Post-Closing Adjustment is positive) or Seller (if the Post-Closing Adjustment is negative) shall promptly (and in any event within five (5) business days) after the final determination thereof make payment to the other party by wire transfer in immediately available funds of the amount of such difference, together with interest thereon at a per annum rate of 5% from the Closing Date to the date of payment. The Post-Closing Adjustment shall be the sole remedy for any matters, facts or circumstances reflected in the calculation of the Post- Closing Adjustment, and such matters, facts or circumstances shall not entitle either party to indemnification rights or other damages.