Common use of Adjusted Net Working Capital Clause in Contracts

Adjusted Net Working Capital. (a) At least two (2) Business Days prior to the Closing Date (but not more than five (5) Business Days prior to the Closing Date), CCE shall deliver to TCCC a certificate of an executive officer of CCE (the “Closing Adjusted Net Working Capital Certificate”) setting forth CCE’s good faith estimate of Adjusted Net Working Capital as of the Effective Time (the “Certified Closing Adjusted Net Working Capital”). If the Certified Closing Adjusted Net Working Capital is greater than Target Adjusted Net Working Capital, then TCCC shall pay or cause to be paid to Splitco at the Closing an amount equal to such difference. If the Certified Closing Adjusted Net Working Capital is less than Target Adjusted Net Working Capital, then Splitco shall pay or cause to be paid at the Closing an amount equal to such difference to TCCC. (b) Except as may otherwise be agreed by the parties, as promptly as practicable, but in no event later than sixty (60) days after the Closing Date, TCCC shall in good faith prepare and deliver to Splitco (i) an unaudited consolidated balance sheet of the North American Business Entities as of the Effective Time prepared in accordance with GAAP (except for the absence of notes) (the “Closing Balance Sheet”), and (ii) a statement (the “Closing Adjusted Net Working Capital Statement”) setting forth TCCC’s calculation of the Adjusted Net Working Capital as of the Effective Time, based on such Closing Balance Sheet calculated on a basis consistent with Schedule C (the “Closing Adjusted Net Working Capital”). (c) Without prejudice to any of TCCC’s rights hereunder, following the Closing, in the event that TCCC believes in good faith that Closing Adjusted Net Working Capital is greater or lesser than Certified Closing Adjusted Net Working Capital, the following provisions will apply: (i) TCCC and the North American Business Entities shall permit Splitco and their representatives to have reasonable access to the books, records and other documents (including work papers) pertaining to or used in connection with preparation of the Closing Balance Sheet and TCCC’s calculation of the Closing Adjusted Net Working Capital and provide Splitco with copies thereof (as reasonably requested by Splitco). If Splitco disagrees with TCCC’s calculation of the Closing Adjusted Net Working Capital as set forth on the Closing Balance Sheet, Splitco shall, within thirty (30) days after Splitco’s receipt of the Closing Balance Sheet, notify TCCC in writing of such disagreement by setting forth Splitco’s calculation of the Closing Adjusted Net Working Capital and describing in reasonable detail the basis for such disagreement (an “Objection Notice”). If no Objection Notice is delivered on or prior to the thirtieth (30th) day after Splitco’s receipt of the Closing Balance Sheet, TCCC’s calculation of the Closing Adjusted Net Working Capital shall be deemed to be binding on the parties hereto. If an Objection Notice is timely delivered to TCCC, then TCCC and Splitco shall negotiate in good faith to resolve their disagreements with respect to the computation of the Closing Adjusted Net Working Capital. In the event that TCCC and Splitco are unable to resolve all such disagreements within fifteen (15) days after TCCC’s receipt of such Objection Notice, TCCC and Splitco shall submit such remaining disagreements to an independent, nationally recognized accounting firm mutually acceptable to TCCC and Splitco (the “Auditor”) for resolution. (ii) TCCC and Splitco shall use their respective reasonable efforts to cause the Auditor to resolve all remaining disagreements with respect to the computation of the Closing Adjusted Net Working Capital as soon as practicable, but in any event shall direct the Auditor to render a determination within forty-five (45) days after its retention. The Auditor shall consider only those items and amounts in TCCC’s and Splitco’s respective calculations of the Closing Adjusted Net Working Capital that are identified as being items and amounts to which TCCC and Splitco have been unable to agree on. In resolving any disputed item, the Auditor shall act as an expert and not as an arbitrator and the Auditor may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Auditor’s determination of the Closing Adjusted Net Working Capital shall not be limited to the materials submitted by TCCC and Splitco but may include any relevant accounting literature or guidance, and shall be based on the definition of “Adjusted Net Working Capital” included herein. The determination of the Auditor shall be conclusive and binding upon the parties hereto. (iii) The costs and expenses of the Auditor in determining the Closing Adjusted Net Working Capital shall be borne equally by TCCC, on the one hand, and Splitco, on the other hand. (iv) Within five (5) Business Days after the Closing Adjusted Net Working Capital is finally determined pursuant to this Section 6.23(c), Splitco shall pay to CCE or CCE shall pay to Splitco, as the case may be, an amount equal to the excess, if any, of Certified Closing Adjusted Net Working Capital over Closing Adjusted Net Working Capital, or Closing Adjusted Net Working Capital over Certified Closing Adjusted Net Working Capital, respectively, which payment shall be made by wire transfer of immediately available funds to the account(s) designated by TCCC or Splitco, as applicable. (d) Notwithstanding anything herein to the contrary, amounts paid or required to be paid pursuant to Paragraph 7 of Schedule A, Section 6.24, or Section 3.14(b) of the Employee Matters Agreement shall not be taken into account in the determination of the Adjusted Net Working Capital of the North American Business or any payments required to be made pursuant to this Section 6.23. (e) All payments made pursuant to Section 6.23(c) and any other payment, adjustment, reimbursement, or amount made or taken into account (collectively, payments) under this Agreement after the Effective Time shall be treated by all parties hereto (and all of their Affiliates) for all Tax purposes as non-taxable payments made immediately prior to the Closing to the maximum extent permitted by applicable Law. To the extent practicable, any such payments to CCE or any Subsidiary of CCE by Splitco or any Subsidiary of Splitco following the Closing will be segregated by CCE and transferred as promptly as practicable to creditors of CCE in payment of debt outstanding on the date hereof or incurred subsequent to the date hereof in the ordinary course of business, or to shareholders of CCE in respect of their CCE shares.

Adjusted Net Working Capital. (a) At least two (2) Business Days prior to the Closing Date (but not more than five (5) Business Days prior to the Closing Date), CCE shall deliver to TCCC a certificate of an executive officer of CCE (the “"Closing Adjusted Net Working Capital Certificate”") setting forth CCE’s 's good faith estimate of Adjusted Net Working Capital as of the Effective Time (the “"Certified Closing Adjusted Net Working Capital”"). If the Certified Closing Adjusted Net Working Capital is greater than Target Adjusted Net Working Capital, then TCCC shall pay or cause to be paid to Splitco at the Closing an amount equal to such difference. If the Certified Closing Adjusted Net Working Capital is less than Target Adjusted Net Working Capital, then Splitco shall pay or cause to be paid at the Closing an amount equal to such difference to TCCC. (b) Except as may otherwise be agreed by the parties, as promptly as practicable, but in no event later than sixty (60) days after the Closing Date, TCCC shall in good faith prepare and deliver to Splitco (i) an unaudited consolidated balance sheet of the North American Business Entities as of the Effective Time prepared in accordance with GAAP (except for the absence of notes) (the “"Closing Balance Sheet”"), and (ii) a statement (the “"Closing Adjusted Net Working Capital Statement”") setting forth TCCC’s 's calculation of the Adjusted Net Working Capital as of the Effective Time, based on such Closing Balance Sheet calculated on a basis consistent with Schedule C (the “"Closing Adjusted Net Working Capital”"). (c) Without prejudice to any of TCCC’s 's rights hereunder, following the Closing, in the event that TCCC believes in good faith that Closing Adjusted Net Working Capital is greater or lesser than Certified Closing Adjusted Net Working Capital, the following provisions will apply: (i) TCCC and the North American Business Entities shall permit Splitco and their representatives to have reasonable access to the books, records and other documents (including work papers) pertaining to or used in connection with preparation of the Closing Balance Sheet and TCCC’s 's calculation of the Closing Adjusted Net Working Capital and provide Splitco with copies thereof (as reasonably requested by Splitco). If Splitco disagrees with TCCC’s 's calculation of the Closing Adjusted Net Working Capital as set forth on the Closing Balance Sheet, Splitco shall, within thirty (30) days after Splitco’s 's receipt of the Closing Balance Sheet, notify TCCC in writing of such disagreement by setting forth Splitco’s 's calculation of the Closing Adjusted Net Working Capital and describing in reasonable detail the basis for such disagreement (an “"Objection Notice”"). If no Objection Notice is delivered on or prior to the thirtieth (30th) day after Splitco’s 's receipt of the Closing Balance Sheet, TCCC’s 's calculation of the Closing Adjusted Net Working Capital shall be deemed to be binding on the parties hereto. If an Objection Notice is timely delivered to TCCC, then TCCC and Splitco shall negotiate in good faith to resolve their disagreements with respect to the computation of the Closing Adjusted Net Working Capital. In the event that TCCC and Splitco are unable to resolve all such disagreements within fifteen (15) days after TCCC’s 's receipt of such Objection Notice, TCCC and Splitco shall submit such remaining disagreements to an independent, nationally recognized accounting firm mutually acceptable to TCCC and Splitco (the “"Auditor”") for resolution. (ii) TCCC and Splitco shall use their respective reasonable efforts to cause the Auditor to resolve all remaining disagreements with respect to the computation of the Closing Adjusted Net Working Capital as soon as practicable, but in any event shall direct the Auditor to render a determination within forty-five (45) days after its retention. The Auditor shall consider only those items and amounts in TCCC’s 's and Splitco’s 's respective calculations of the Closing Adjusted Net Working Capital that are identified as being items and amounts to which TCCC and Splitco have been unable to agree on. In resolving any disputed item, the Auditor shall act as an expert and not as an arbitrator and the Auditor may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Auditor’s 's determination of the Closing Adjusted Net Working Capital shall not be limited to the materials submitted by TCCC and Splitco but may include any relevant accounting literature or guidance, and shall be based on the definition of “"Adjusted Net Working Capital” " included herein. The determination of the Auditor shall be conclusive and binding upon the parties hereto. (iii) The costs and expenses of the Auditor in determining the Closing Adjusted Net Working Capital shall be borne equally by TCCC, on the one hand, and Splitco, on the other hand. (iv) Within five (5) Business Days after the Closing Adjusted Net Working Capital is finally determined pursuant to this Section 6.23(c), Splitco shall pay to CCE or CCE shall pay to Splitco, as the case may be, an amount equal to the excess, if any, of Certified Closing Adjusted Net Working Capital over Closing Adjusted Net Working Capital, or Closing Adjusted Net Working Capital over Certified Closing Adjusted Net Working Capital, respectively, which payment shall be made by wire transfer of immediately available funds to the account(s) designated by TCCC or Splitco, as applicable. (d) Notwithstanding anything herein to the contrary, amounts paid or required to be paid pursuant to Paragraph 7 of Schedule A, Section 6.24, or Section 3.14(b) of the Employee Matters Agreement shall not be taken into account in the determination of the Adjusted Net Working Capital of the North American Business or any payments required to be made pursuant to this Section 6.23. (e) All payments made pursuant to Section 6.23(c) and any other payment, adjustment, reimbursement, or amount made or taken into account (collectively, payments) under this Agreement after the Effective Time shall be treated by all parties hereto (and all of their Affiliates) for all Tax purposes as non-taxable payments made immediately prior to the Closing to the maximum extent permitted by applicable Law. To the extent practicable, any such payments to CCE or any Subsidiary of CCE by Splitco or any Subsidiary of Splitco following the Closing will be segregated by CCE and transferred as promptly as practicable to creditors of CCE in payment of debt outstanding on the date hereof or incurred subsequent to the date hereof in the ordinary course of business, or to shareholders of CCE in respect of their CCE shares.

Adjusted Net Working Capital. (ai) At least two (2) Business Days prior to As promptly as practicable after the Closing Date (but in any event not more later than five (5) Business Days prior to 60 days after the Closing Date), CCE Buyer shall deliver cause to TCCC be prepared and delivered to Seller, a certificate of an executive officer of CCE (the “"Closing Adjusted Net Working Capital Certificate”") setting forth CCE’s good faith estimate Buyer's calculation of Adjusted the Net Working Capital as of the Effective Time (the “Certified "Closing Adjusted Net Working Capital”). If the Certified Closing Adjusted Date Net Working Capital is greater than Target Adjusted Net Working Capital, then TCCC shall pay or cause to be paid to Splitco at Amount") as of 12:01 A.M. on the Closing an amount equal to such difference. If the Certified Closing Adjusted Net Working Capital is less than Target Adjusted Net Working Capital, then Splitco shall pay or cause to be paid at the Closing an amount equal to such difference to TCCC. (b) Except as may otherwise be agreed by the parties, as promptly as practicable, but in no event later than sixty (60) days after the Closing Date, TCCC shall in good faith prepare and deliver to Splitco (i) an unaudited consolidated balance sheet of the North American Business Entities as of the Effective Time prepared in accordance with GAAP (except for the absence of notes) Date (the “Closing Balance Sheet”), and (ii) a statement (the “Closing Adjusted Net Working Capital Statement”) setting forth TCCC’s calculation of the Adjusted Net Working Capital as of the "Effective Time, ") based on such Closing Balance Sheet calculated on a basis consistent with Schedule C (upon the “Closing Adjusted Net Working Capital”). (c) Without prejudice books and records of GNP. Buyer will make available to any Seller and its accountants copies of TCCC’s rights hereunder, following the Closing, all customary accounting working papers in the event their possession that TCCC believes in good faith that Closing Adjusted Net Working Capital is greater or lesser than Certified Closing Adjusted Net Working Capital, the following provisions will apply: (i) TCCC and the North American Business Entities shall permit Splitco and their representatives to have reasonable access to the books, records and other documents (including work papers) pertaining to or used were prepared in connection with preparation of the Closing Balance Sheet and TCCC’s calculation of the Closing Adjusted Date Net Working Capital Amount and to provide Splitco Seller and its accountants with copies thereof access to the persons conducting such preparation or review by or for Buyer. The Closing Net Working Capital Amount shall be determined (as reasonably requested x) in accordance with GAAP, and (y) in accordance with accounting policies and practices consistent with those used in the preparation of the Base Balance Sheet, without giving effect to the transactions contemplated hereby. The fees and expenses of preparing the Closing Net Working Capital Certificate shall be borne equally by Splitco). If Splitco disagrees with TCCC’s calculation Buyer and Seller. (ii) Seller and Seller's accountants shall, within 45 days after delivery by Buyer of the Closing Adjusted Net Working Capital as set forth on the Closing Balance SheetCertificate, Splitco shall, within thirty (30) days after Splitco’s receipt complete their review of the Closing Balance Sheet, notify TCCC documents referred to in writing of such disagreement by setting forth Splitco’s calculation of the Closing Adjusted Net Working Capital and describing in reasonable detail the basis for such disagreement (an “Objection Notice”). If no Objection Notice is delivered on or prior to the thirtieth (30thSection 2.03(a)(i) day after Splitco’s receipt of the Closing Balance Sheet, TCCC’s calculation of the Closing Adjusted Net Working Capital shall be deemed to be binding on the parties hereto. If an Objection Notice is timely delivered to TCCC, then TCCC and Splitco shall negotiate in good faith to resolve their disagreements with respect to the computation of the Closing Adjusted Net Working Capitalabove. In the event that TCCC Seller questions or disagrees with the proposed Closing Date Net Working Capital Amount, Seller shall inform Buyer in writing (the "Seller's Objection"), setting forth a specific description of the basis of Seller's Objection and Splitco the changes and adjustments to the Closing Date Net Working Capital Amount which Seller believes should be made, on or before the last day of such 45-day period. The failure to notify Buyer of any objections or proposed changes within such period shall be deemed to mean that Seller has no such objections or proposed changes. (iii) If a Seller's Objection is timely delivered pursuant to Section 2.03(a)(ii) above, Buyer and Seller, during the 15 days following delivery of such notice, shall use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of the Closing Date Net Working Capital Amount. If during such period, Buyer and Seller are unable to resolve all reach such disagreements within fifteen (15) days after TCCC’s receipt agreement, they shall refer their remaining differences to Arthxx Xxxexxxx, X.X., xx another internationally recognized firm of such Objection Notice, TCCC independent public accountants as to which Seller and Splitco shall submit such remaining disagreements to an independent, nationally recognized accounting firm Buyer mutually acceptable to TCCC and Splitco agree (the “Auditor”"Resolution CPA Firm"), who shall be informed of the confidentiality agreements contained herein and applicable hereto and agree to be bound thereby, and who shall determine on the basis of the standards set forth in Section 2.03(a)(i) for resolution. (ii) TCCC hereof, and Splitco shall use their respective reasonable efforts to cause the Auditor to resolve all remaining disagreements only with respect to the computation of remaining differences so submitted, whether and to what extent, if any, the Closing Adjusted Date Net Working Capital Amount, as soon as practicable, but set forth in any event shall direct the Auditor to render a determination within forty-five (45) days after its retention. The Auditor shall consider only those items and amounts in TCCC’s and Splitco’s respective calculations of the Closing Adjusted Net Working Capital that are identified as being items Certificate, requires adjustment. Buyer and amounts Seller shall make readily available to which TCCC the Resolution CPA Firm all relevant books and Splitco have been unable records and any work papers (including those of the Parties' respective accountants) relating to agree on. In resolving any disputed item, the Auditor shall act as an expert and not as an arbitrator Base Balance Sheet and the Auditor may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Auditor’s determination of the Closing Adjusted Net Working Capital Certificate and all other items reasonably requested by the Resolution CPA Firm. The Parties shall not be limited instruct the Resolution CPA Firm to deliver its written determination to Buyer and Seller no later than the twentieth day after the remaining differences underlying Seller's Objection are referred to the materials submitted by TCCC and Splitco but may include any relevant accounting literature or guidance, and shall be based on the definition of “Adjusted Net Working Capital” included hereinResolution CPA Firm. The Resolution CPA Firm's determination of the Auditor shall be conclusive and binding upon the parties heretoBuyer and Seller. (iii) The costs and expenses of the Auditor in determining the Closing Adjusted Net Working Capital shall be borne equally by TCCC, on the one hand, and Splitco, on the other hand. (iv) Within five (5) Business Days after the Closing Adjusted Net Working Capital is finally determined pursuant to this Section 6.23(c), Splitco shall pay to CCE or CCE shall pay to Splitco, as the case may be, an amount equal to the excess, if any, of Certified Closing Adjusted Net Working Capital over Closing Adjusted Net Working Capital, or Closing Adjusted Net Working Capital over Certified Closing Adjusted Net Working Capital, respectively, which payment shall be made by wire transfer of immediately available funds to the account(s) designated by TCCC or Splitco, as applicable. (d) Notwithstanding anything herein to the contrary, amounts paid or required to be paid pursuant to Paragraph 7 of Schedule A, Section 6.24, or Section 3.14(b) of the Employee Matters Agreement shall not be taken into account in the determination of the Adjusted Net Working Capital of the North American Business or any payments required to be made pursuant to this Section 6.23. (e) All payments made pursuant to Section 6.23(c) and any other payment, adjustment, reimbursement, or amount made or taken into account (collectively, payments) under this Agreement after the Effective Time shall be treated by all parties hereto (and all of their Affiliates) for all Tax purposes as non-taxable payments made immediately prior to the Closing to the maximum extent permitted by applicable Law. To the extent practicable, any such payments to CCE or any Subsidiary of CCE by Splitco or any Subsidiary of Splitco following the Closing will be segregated by CCE and transferred as promptly as practicable to creditors of CCE in payment of debt outstanding on the date hereof or incurred subsequent to the date hereof in the ordinary course of business, or to shareholders of CCE in respect of their CCE shares.