Common use of Adjustment Amount Clause in Contracts

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within seventy-five (75) days thereof, Acquiror shall prepare and deliver to the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”) prepared in accordance with the NWC Methodology, (iii) a calculation of the aggregate amount of all Indebtedness of the Company (“Closing Date Indebtedness”), (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), and (v) a calculation of unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of 12:01 a.m. Pacific Time on the Closing Date (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)) consistent (except as provided in this Section ‎3.4(a)) with the Closing Balance Sheet without giving effect to the consummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)). The Closing Balance Sheet shall be prepared in accordance with GAAP applied in a manner consistent with the accounting principles, practices and methodologies applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”). For the purpose of determining Closing Date Net Working Capital, the consolidated current assets and current liabilities of the Company and its Subsidiaries shall exclude the value of all Transaction Expenses.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within seventy-five sixty (7560) calendar days thereof, Acquiror Buyer shall prepare and deliver to the Holder Representative (iA) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (ii) prepared in accordance with a calculation of the NWC Methodologyaggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Indebtedness of the Company Transaction Expenses (“Closing Date IndebtednessTransaction Expenses”), and (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), and (v) a calculation of unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of 12:01 a.m. Pacific the Measurement Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date and (provided that Taxes included in y) for purposes of determining the amount of Closing Transaction Expenses, such calculation amount shall be calculated determined as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)) consistent (except as provided in this Section ‎3.4(a)) with the Closing Balance Sheet without giving effect immediately prior to the consummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)Closing). The Closing Balance Sheet Statements shall each be prepared in accordance with GAAP GAAP, applied in a manner consistent with the accounting principles, practices and methodologies to the extent in conformity with GAAP applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”) using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet; provided, however, that (I) the Closing Statements shall reflect no new reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IV). For the purpose of determining Closing Date Net Working Capital, the consolidated current assets Pre-Closing Statement and current liabilities the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, (III) the Pre-Closing Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (IV) the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax Deductions. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative and shall exclude cause the value personnel of all Transaction Expensesthe Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by the Holder Representative.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within seventy-five sixty (7560) calendar days thereof, Acquiror shall prepare and deliver to the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”) ), prepared in accordance with the NWC Methodology, (iii) a calculation of the aggregate amount of all Indebtedness of the Company (“Closing Date Indebtedness”), (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), and (v) a calculation of unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of 12:01 a.m. Pacific Time the close of business on the Closing Date (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)) consistent (except as provided in this Section ‎3.4(a3.4(a)) with the Closing Balance Sheet without giving effect to the consummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv))practice. The Closing Balance Sheet shall be prepared in accordance with GAAP applied in a manner consistent with the accounting principles, practices and methodologies principles applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet and (y) the Closing Balance Sheet shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet. Following the Closing, Acquiror shall provide the Holder Representative and its representatives access to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Balance Sheet and shall cause the personnel of the Company and its Subsidiaries to cooperate with the Holder Representative in connection with its review of the Closing Balance Sheet. For the purpose of determining Closing Date Net Working Capital, the consolidated current assets and current liabilities of the Company and its Subsidiaries shall exclude the value of all Transaction Expenses.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within seventy-five sixty (7560) days thereof, Acquiror Buyer shall prepare and deliver to the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”) prepared in accordance with the NWC Methodology), (iii) a calculation of the aggregate amount of all Indebtedness Funded Debt of the Company (“Closing Date IndebtednessFunded Debt”), (iv) a calculation of Cash and Cash Equivalents of the Company and its Subsidiaries (“Closing Date Cash”), ) and (v) a calculation of unpaid and accrued Unpaid Company Transaction Expenses (“Closing Date Unpaid Company Transaction Expenses”), in each case, calculated (except as of 12:01 a.m. Pacific Time on set forth in the Closing Date proviso below) (provided that Taxes included in such calculation shall be x) calculated as of 11:59 p.m. Pacific Time Eastern time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)) consistent (except as provided in this Section ‎3.4(a)) accordance with the Closing Balance Sheet Principles and (y) without giving effect to the consummation of the Merger, including any payments of cash in respect of the Merger Consideration, any repayment of Funded Debt of the Company after the Effective Time or any financing transactions in connection therewith with the transactions contemplated hereby or, after the Effective Time, any other action or omission by AcquirorBuyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice practice; provided, however, that (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on I) the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)). The Closing Balance Sheet shall be prepared reflect no changes in accordance with GAAP applied reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in a manner consistent with the accounting principlesClosing Balance Sheet) from amounts contained in the Reference Balance Sheet, practices other than changes therein attributable to changes in facts and methodologies applied in connection with circumstances occurring after the preparation date of the most recent audited balance sheet Reference Balance Sheet, (II) the Tax assets and liabilities included in the Financial Statements (the “Reference Closing Balance Sheet”). For the purpose of determining Sheet and Closing Date Net Working CapitalCapital shall give effect to and take into account the consummation of the Merger and the other transactions contemplated by this Agreement, and (III) the consolidated current assets Closing Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement. Following the Closing, Buyer shall provide the Holder Representative and current liabilities its representatives access to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Balance Sheet and shall exclude cause the value personnel of all Transaction Expensesthe Company and its Subsidiaries to cooperate with the Holder Representative in connection with its review of the Closing Balance Sheet.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within seventy-five ninety (7590) calendar days thereof, Acquiror Buyer shall prepare and deliver to the Holder Representative, together with such schedules and data with respect to the determination of each of the following as the Holder Representative deems reasonably appropriate to support such calculations and estimates, (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”) prepared in accordance with the NWC Methodology), (iiiii) a calculation of the aggregate amount of all Indebtedness Funded Debt of the Company (“Closing Date IndebtednessFunded Debt”), (iviii) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), ) and (viv) a calculation of unpaid the consolidated liabilities of the Company and accrued its Subsidiaries for Company Transaction Expenses (the “Closing Date Unpaid Company Transaction Expenses”), in each case, calculated as of 12:01 a.m. Pacific Time 11:59 p.m. (Eastern time) on the Closing Date (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)x) consistent (except as provided in this Section ‎3.4(a3.4(a)) with the definitions of Closing Balance Sheet without giving effect to the consummation Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash, and Closing Date Unpaid Company Transaction Expenses (and in each case any definitions of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission defined terms used therein) (such amounts defined by Acquirorsuch definitions, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice “Price Components”) and (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)). The Closing Balance Sheet shall be prepared y) in accordance with GAAP applied in a manner consistent with the same accounting principles, practices practices, policies, methodologies and methodologies judgments applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”). For ; provided, however, that (I) the purpose Price Components shall reflect no changes in reserves from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of determining the Reference Balance Sheet, (II) except as set forth in the following clause (V), the calculation of the Price Components shall not give effect to the consummation of the Merger, including any payments of cash in respect of the Merger Consideration or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Company or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice, (III) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet, (IV) the Price Components shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (V) the determination of Closing Date Net Working Capital, Capital shall include the consolidated current assets and current liabilities effects of any deductions or other Tax benefits arising in connection with the consummation of the Company transactions contemplated hereby (the accounting principles, practices, policies, methodologies and its Subsidiaries shall exclude judgments in subsection (y) being referred to collectively as the value of all Transaction Expenses“Accounting Principles”).

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within seventy-five sixty (7560) calendar days thereof, Acquiror Buyer shall prepare and deliver to the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”) prepared in accordance with the NWC Methodology), (iii) a calculation of the aggregate amount of all Indebtedness Funded Debt of the Company (“Closing Date IndebtednessFunded Debt”), (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), ) and (v) a calculation of unpaid and accrued the Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of 12:01 a.m. Pacific the Reference Time on and, with respect to the Closing Date (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth calculations described in the proviso to Section 8.2(a)(iv)foregoing clauses (ii)-(v) consistent (except as provided in this Section ‎3.4(a3.4(a)) ), consistent with the Closing Balance Sheet without giving effect to the consummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv))Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP applied in a manner consistent (except as provided in this Section 3.4(a)) with the accounting principles, practices and methodologies principles applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”). For ; provided, however, that (x) except as set forth in clause (y), the purpose Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of determining the Reference Balance Sheet and (y) (I) the Closing Balance Sheet shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet, (III) the Closing Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement, (IV) notwithstanding anything to the contrary in this Agreement (including the definition of Funded Debt), if the Notes are not redeemed by the Issuers on the Closing Date, for the purposes of defining and calculating the Closing Date Funded Debt, the aggregate amount due and owing in respect of the Notes (or Indenture) shall be deemed to be an amount equal only to (A) the aggregate principal amount of the Notes, as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Notes, as applicable, then outstanding and (V) the Closing Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in the calculation of Closing Date Net Working Capital, the consolidated Capital shall take into account and be reduced (but not below zero) by current assets and current liabilities of the Company and its Subsidiaries shall exclude the value of all Transaction Expenses.income