Operating Adjustment Clause Samples

An Operating Adjustment clause defines the process for modifying certain operational terms or financial metrics within an agreement to reflect changes in circumstances or performance. Typically, this clause outlines how adjustments are calculated, what triggers them—such as fluctuations in costs, revenues, or external benchmarks—and the timeframe for implementing these changes. Its core practical function is to ensure that the agreement remains fair and relevant over time by allowing for recalibration in response to evolving operational realities, thereby reducing disputes and maintaining balance between the parties.
Operating Adjustment a. October 1, 1996, at 12:01 a.m. shall be considered the "Effective Date" of this Agreement, and the operations of ▇▇▇▇▇▇▇▇▇ and the Cogeneration Assets, including income derived from the P.G.&E. S.O. #2 Contract, shall be for the account of ▇▇▇▇▇ from and after that date, conducted in the ordinary course of business as described in Section 5.5 hereof; provided, however, that the application of such an Effective Date shall not be deemed to make ▇▇▇▇▇ liable for any costs or charges related to the SOCAL Contract. For all other purposes, and without limiting the generality of the foregoing, the representations, warranties, covenants and indemnities herein, and the delivery of the Purchase Price, shall occur and be effective at the Closing. The Operating Adjustment will occur at or after the Closing with a cash payment in an amount equal to the net income or loss of the Cogeneration Assets after the Effective Date, adjusted to reflect only necessary operating revenues and expenses which would have been credited to or incurred by ▇▇▇▇▇ had both this Agreement and the acquisition of the Cogeneration Assets under the Right to Purchase Contract been concluded and closed on the Effective Date. The operating revenues shall specifically include, but not be limited to, revenue from power and steam sales. Operating expenses shall exclude any payments made pursuant to the Cogeneration Lease or the Cogeneration Premises Lease, any SOCAL charges, legal fees, interest, amortization, unreasonable travel and entertainment and management fees in excess of Fifty Dollars ($50) per day. If the Cogeneration Assets produce a net income after the Effective Date, then ▇▇▇▇▇▇▇▇▇ shall pay ▇▇▇▇▇ an Operating Adjustment equal to such net income. If the Cogeneration Assets produce a net loss after the Effective Date, then ▇▇▇▇▇ shall pay ▇▇▇▇▇▇▇▇▇ an Operating Adjustment equal to the amount of the net loss. b. In the event ▇▇▇▇▇▇▇▇▇ does not provide ▇▇▇▇▇ with its calculation of the Operating Adjustment (the "Calculation") prior to the Closing, ▇▇▇▇▇▇▇▇▇ shall provide ▇▇▇▇▇ with the Calculation within sixty (60) days after the Closing. ▇▇▇▇▇ shall have immediate access at reasonable times to such books, records and invoices as it deems necessary to verify the Calculation. If ▇▇▇▇▇ does not object to the Calculation within ten (10) days after receipt thereof by ▇▇▇▇▇, it shall be deemed to be final and binding upon the parties hereto. If ▇▇▇▇▇ objects to the Calculation within such ten...
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Operating Adjustment. (a) The Purchase Price shall be adjusted as follows ("Operating Adjustments") in accordance with the procedures set forth in Section 2.5(b): i. Adjustments on a pro rata basis as of the Closing Date shall be made for all expenses prepaid and deposits made by Seller, all as determined in accordance with GAAP consistently applied, and to reflect the principle that all such expenses and deposits attributable to the Business for the period prior to the Closing Date are for the account of Seller, and all such expenses and deposits attributable to the Business for the period on and after the Closing Date are for the account of Purchaser. ii. All Subscriber deposits which have not been applied or refunded as of the Closing Date shall be retained by Seller and shall constitute a corresponding decrease in the Purchase Price credited to the account of Purchaser. iii. All deferred or prepaid income as of the Closing Date shall be retained by Seller and shall constitute a corresponding decrease in the Purchase Price credited to the account of Purchaser (excluding any adjustment on account of the $200 Rebate Program of DirecTV, Inc.). iv. All DSS System access card changeover costs for Subscribers that have been or will be billed by NRTC pursuant to NRTC's memorandum of August 7, 1996, as updated, shall be paid by Purchaser and shall constitute a decrease in the Purchase Price credited to the account of Purchaser, except for those costs previously paid by Seller. v. To the extent that Purchaser elects at Closing to purchase Inventory, Seller shall receive credit therefor in an amount equal to (x) the number of units transferred to Purchaser multiplied by (y) the book value of such units; provided, however, that Purchaser shall purchase all new DSS Systems held in Inventory at Closing with a book value of $240 per DSS System, and at least 125 new DSS Systems held in Inventory at Closing which have a book value of greater than $240 but less than $300 per single access DSS System and a book value of not greater than $325 per dual access DSS System, and Seller shall receive credit therefor. vi. All Closing Accounts Receivable that become 90 days or more past due within 60 days after Closing shall constitute a decrease in the Purchase Price credited to the account of Purchaser. vii. All Accounts Receivable that are more than 60 days past due as of the Closing Date and are collected within 60 days after Closing shall constitute an increase in the Purchase Price credited to t...
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Operating Adjustment. 5 2.5 Assets to be Conveyed to Berry.. . . . . . . . . . . . . . . . 6 2.6
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Operating Adjustment. (a) The Purchase Price shall be adjusted as follows ("Operating Adjustment") in accordance with the procedures set forth in Section 2.5(b): i. Adjustments on a pro rata basis as of the Closing Date shall be made for all expenses prepaid and deposits made by Seller, all as determined in accordance with GAAP consistently applied, and to reflect the principle that all such expenses and deposits attributable to the Business for the period prior to the Closing Date are for the account of Seller, and all such expenses and deposits attributable to the Business for the period on and after the Closing Date are for the account of Purchaser. ii. All Subscriber deposits which have not been applied or refunded as of the Closing Date shall be retained by Seller and shall constitute a corresponding decrease in the Purchase Price credited to the account of Purchaser.
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Operating Adjustment. The parties intend that the Seller operate the Business for the account of the Purchaser for the period commencing December 31, 1995 (the "Effective Date"). Accordingly, as an additional purchase price adjustment, the Adjusted Purchase Price shall be further adjusted as follows (as so adjusted, the "Final Purchase Price"). By no later than 10 business days following the Closing Date, the Seller shall prepare and deliver to the Purchaser a statement of the net cash generated or consumed by the Business (the "Operating Statement") between the Effective Date and the Closing Date. It is understood and agreed by the parties hereto that the Operating Statement shall be computed by the Seller without taking into consideration any cash consumed by the Business due to (i) the payment of any liabilities of the Business which are not Assumed Liabilities, and (ii) any transaction relating to assets of the Business which are not Assets being purchased by the Purchaser (it being understood that lease payments and insurance policy premiums shall be included in computing the operating Statement). In the event the Purchaser disputes the Operating Statement, the Purchaser shall notify the Seller in writing of the amount, nature and basis of such dispute within 5 business days after delivery of the Operating Statement (the "Operating Adjustment Dispute Notice"). The parties shall use their best efforts to resolve the dispute within 10 days after delivery of the Operating Adjustment Dispute Notice. If they are unable to agree upon a resolution of the dispute within such 10-day period, the dispute shall be submitted to Deloitte & Touche for resolution. The determination of such accountants as to the resolution of any dispute shall be binding and conclusive upon all parties hereto. The fees and expenses of such accountants shall be shared equally by the Seller and the Purchaser. Immediately upon the expiration of the 10-day period for giving the Operating Adjustment Dispute Notice (if no Operating Adjustment Dispute Notice is given), or immediately upon the resolution of disputes, if any, the Adjusted Purchase Price shall be reduced by the net amount of any cash generated by the Business between the Effective Date and the Closing Date, or increased by the net amount of any cash consumed by the Business between the Effective Date and the Closing Date. Any amounts due to the Purchaser or the Seller pursuant to this subsection (c) shall be payable no later than three business days...
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Operating Adjustment. 10 2.6 Liabilities........................................................................12 2.7 Closing............................................................................12 2.8 Transactions at Closing............................................................12
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Operating Adjustment. 5 2.5 Assets to be Conveyed to ▇▇▇▇▇.. . . . . . . . . . . 5 2.6
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Operating Adjustment. The Base Purchase Price payable in respect of a Transferred Asset or a Non-Transferred Asset shall be adjusted on account of the Operating Cashflow associated with such Transferred Asset or Non-Transferred Asset, as applicable, (the “Operating Adjustment”) from the Adjustment Date to (i) in the case of a Transferred Asset, the applicable Asset Closing Date, and (ii) in the case of a Non-Transferred Asset, the date of adjustment specified in respect of such Non-Transferred Asset pursuant to Section 4.7(d)(i), 4.7(e) or 4.8(b)(ii), as applicable.
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Related to Operating Adjustment

  • Closing Adjustment (A) with the actual amount paid at the Closing for Paid Time Off. The ----- Sellers shall notify the Buyer in writing of any disputed items contained in the Assets Determination within thirty (30) days from its delivery, and after such date all undisputed items shall be deemed accepted by Seller and made part of the final determination of the adjustment, if any, to be made to the Purchase Price (the "Final Statement"). As soon as practical, but in any event within thirty (30) days following the Closing, the Sellers shall prepare and deliver to the Buyer an inventory determination (the "Inventory Determination") comparing the cost of the Inventory as of July 31, 1996, which is set forth in Schedule 2.3 hereto, with ------------ the actual cost (including the actual and reasonable freight and handling costs associated with acquiring and delivering the Inventory to the Sam's Club Locations) of the Inventory transferred on the Closing. The Sellers and the Buyer may each conduct their own physical count of the Inventory transferred on the Closing Date. The Buyer shall notify the Sellers in writing of any disputed items contained in the Inventory Determination within thirty (30) days from its delivery, and after such date all undisputed items shall be deemed accepted by the Buyer and made part of the Final Statement. In the event that the Sellers and the Buyer are unable to agree upon disputed items within thirty (30) days after the Buyer's notification thereof, then the amount of the disputed items shall be determined by the accounting firm of Price Waterhouse LLP, or such other firm selected by the Buyer within fifteen days after the end of such thirty day period. The disputed items shall be submitted to the selected accounting firm within thirty days after such accounting firm is selected. The determination by such accounting firm shall be conclusive and binding on all parties, shall be made within sixty days after such disputed items are so submitted and shall be made a part of the Final Statement. The Buyer shall pay all of the fees and expenses of the accounting firm settling any disputed items on the Final Statement.

  • Post-Closing Adjustment (a) Not more than twenty (20) days after the Closing Date, Purchasers shall deliver to Sellers a certificate of an authorized officer setting forth Purchasers’ calculation, as of the Closing Date, of the Net Working Capital (the “Proposed Closing Net Working Capital”). Such statement shall include separate line items, as of the Closing, for (i) cash and cash equivalents included in the Purchased Assets, (ii) the amount of outstanding accounts receivable included in the Purchased Assets, and (iii) the amount of Assumed Liabilities described in Section 2.7(a). (b) If within ten (10) days following delivery of the Proposed Closing Net Working Capital calculation Sellers have not given Purchasers written notice of their objection to the Proposed Closing Net Working Capital calculation (which notice shall state the basis of Sellers’ objection(s)), then the Proposed Closing Net Working Capital calculated by Purchasers (or any portion of the calculation to which Sellers do not object) shall constitute the “Final Closing Net Working Capital,” shall be binding and conclusive on the Parties. (c) If Sellers give Purchasers timely notice of objection, and if Sellers and Purchasers fail to resolve the issues outstanding with respect to the Proposed Closing Net Working Capital within ten (10) days of Purchasers’ receipt of Sellers’ objection notice, Sellers and Purchasers shall submit the issues remaining in dispute to the Houston office of Deloitte LLP (the “Independent Accountants”) for resolution. If for any reason the Houston office of Deloitte LLP is unwilling to act as the Independent Accountants, the Independent Accounts shall be such other recognized national or regional independent accounting firm mutually acceptable to Purchasers and Sellers. (d) If issues are submitted to the Independent Accountants for resolution, (1) Seller and Purchasers shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that Party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; and (2) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Seller and Purchasers within twenty (20) days of the submission to the Independent Accountants of the issues remaining in dispute, shall constitute the “Final Closing Net Working Capital,” shall be final, binding and conclusive on the Parties and shall be used in computing the Adjustment Amount. The costs and fees related to such determination by the Independent Accountants, including the costs relating to any negotiations with the Independent Accountants with respect to the terms and conditions of such Independent Accountants’ engagement, will be shared equally by Purchasers and Sellers. (e) If the Final Closing Net Working Capital is greater than the Estimated Net Working Capital then within five (5) Business Days of such Final Closing Net Working Capital being provided to the Purchasers, the Purchasers shall issue to Sellers the number of shares (rounded to the nearest whole share) of Hercules Common Stock equal to the quotient of (A) such excess, divided by (B) 3.36, provided that, in no event shall Purchasers be required to issue more than an aggregate of 22,321,425 shares of Hercules Common Stock pursuant to this Agreement, and if Purchasers would otherwise be required, but for this proviso, to issue more shares, then such additional amount owed to Sellers shall be paid in cash in an amount equal to the number of shares exceeding 22,321,425 multiplied by $3.36. If the Estimated Net Working Capital is greater than the Final Closing Net Working Capital, then the Sellers shall return to Purchasers for cancellation the number of Hercules Shares (rounded to the nearest whole share) equal to the quotient of (A) such excess, divided by (B) 3.36.

  • Closing Adjustments Adjustments to the Purchase Price shall be made between Seller and Purchaser and shall be prorated on a per diem basis as of the Closing Date. The Closing Date shall be a day of income and expense for Purchaser. The following items shall be prorated and adjusted between Seller and Purchaser as of the Closing Date, except as otherwise specified: 9.1 Prepaid rents and other prepaid charges collected by Seller from Tenant for the month of Closing shall be prorated by credit to Purchaser. Rents and other charges which relate to periods prior to Closing which have not been collected as of Closing (collectively "Delinquent Rents") shall not be prorated. Seller shall have the right to collect Delinquent Rents from Tenant, which may include legal proceedings against Tenant as Seller deems appropriate, provided no such action shall demand possession or termination of the Lease. Any rents collected after closing shall be applied against the receivable as indicated by Tenant, provided if not specifically identifiable, rents collected after Closing from Tenant shall be applied: (i) first, rents due for the month in which such payment is received, (iii) second, to rents attributable to any period after Closing which are past due on the date of receipt, and (iv) third, to Delinquent Rents. After Closing, Seller shall promptly remit to Purchaser any rents received relating to periods after Closing and Purchaser shall promptly remit to Seller any Delinquent Rents received. The provision of this Section 9.1 shall survive Closing. 9.2 Real estate taxes, water, electricity, sewer, gas, telephone and other utilities and charges which are paid directly by Tenant under the Lease shall not be prorated. 9.3 To the extent that errors are discovered in, or additional information becomes available with respect to, the prorations and allocations made at Closing, Seller and Purchaser agree to make such post-Closing adjustments as may be necessary to correct any inaccuracy; however, all prorations (except for prorations and allocations of (i) ad valorem taxes, (ii) tenant reimbursables of taxes and operating expenses, as applicable and (iii) prorations or allocations that are then currently in dispute) shall be final no later than six (6) months after Closing.

  • Tax Adjustment Tenant shall pay as additional rent for each Calendar Year that amount (the "TAX ADJUSTMENT AMOUNT") which is Tenant's Proportionate Share of the amount by which the Taxes incurred with respect to such Calendar Year exceed the Tax Base Amount. The Tax Adjustment Amount with respect to each Calendar Year shall be paid in monthly installments, in an amount estimated from time to time by Landlord and communicated by written notice to Tenant. Following the close of each Calendar Year, Landlord shall cause the amount of the Tax Adjustment Amount for such Calendar Year to be computed based on Taxes for such Calendar Year and Landlord shall deliver to Tenant a statement of such amount and Tenant shall pay any deficiency as shown by such statement to Landlord within 30 days after receipt of such statement. If the total of the estimated monthly installments paid by Tenant during any Calendar Year exceeds the actual Tax Adjustment Amount due from Tenant for such Calendar Year, then, at Landlord's option such excess shall be either credited against payments next due hereunder or refunded by Landlord, provided Tenant is not then in default hereunder. The amount of any refund of Taxes received by Landlord shall be credited against Taxes for the year in which such refund is received. In determining the amount of Taxes for any year, the amount of special assessments to be included shall be limited to the amount of the installment (plus any interest payable thereon) of such special assessment required to be paid during such year as if the Landlord had elected to have such special assessment paid over the maximum 4. period of time permitted by law; if the authority to whom such assessment is to be paid shall not permit such assessment to be paid in installments, the amount of such assessment shall be treated as being amortized over such number of calendar years, beginning with the Calendar Year in which the assessment is payable, as Landlord shall reasonably determine, with interest at the rate of 15% per annum on the unamortized amount, and such amortization and interest for each Calendar Year shall be included in Taxes for that Calendar Year.

  • Post-Closing Adjustments As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event (a) the Final Purchase Price is more than the Estimated Final Purchase Price, Purchaser shall pay to Seller the amount of such difference, or (b) the Final Purchase Price is less than the Estimated Final Purchase Price, Seller shall pay to Purchaser the amount of such difference, in either event by wire transfer in immediately available funds. Payment by Purchaser or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date.