Common use of Adjustment Procedures Clause in Contracts

Adjustment Procedures. (a) The Investor will have twenty (20) Business Days following delivery of the CPR Notice during which to notify NMI in writing of any objections with respect to the calculation of the CPR Payment Amount, including the value of any non-cash consideration, net third party indebtedness (“Notice of Objection”). If the Investor fails to deliver a Notice of Objection in accordance with this Section 6(a), the CPR Payment Amount shall be conclusive and binding on the Parties. If the Investor submits a Notice of Objection, then (i) for fifteen (15) Business Days after the date upon which NMI receives the Notice of Objection, the Parties will each use their commercially reasonable efforts to agree on the calculation of the disputed amounts and (ii) failing such agreement within such fifteen (15) Business Day period, then the Investor and NMI, acting jointly, shall refer the matter for resolution to the Independent Accounting Firm. Promptly (but in any event within five (5) Business Days) after engagement of the Independent Accounting Firm, the Investor, on the one hand, and NMI, on the other hand, shall each deliver to the Independent Accounting Firm, a notice setting forth in reasonable detail their calculation, to the extent in dispute under the Notice of Objection, of the CPR Payment Amount as of the CPR Sale Transaction Closing Date or the CPR Dividend Payment Date, as applicable. Within fifteen (15) Business Days after receipt thereof, the Independent Accounting Firm shall deliver its determination of the disputed amounts and of the CPR Payment Amount as of the CPR Sale Transaction Closing Date or the CPR Dividend Payment Date, as applicable, which determination shall be final and binding on each of the Parties. For the avoidance of doubt, the only matter the Independent Accounting Firm shall have the authority to determine shall be the CPR Payment Amount, including the value of any non-cash consideration, net third party indebtedness. The fees and expenses of the Independent Accounting Firm shall be paid in equal proportions (i.e., 50% each) by the Investor, on the one hand, and NMI, on the other hand. The CPR Payment Amount that is final and binding on the Parties, as determined either through agreement of the Parties or through the action of the Independent Accounting Firm pursuant to this Section 6(a), is referred to as the “Final CPR Payment Amount”. The Independent Accounting Firm shall act as an expert under the New York CPLR.

Adjustment Procedures. The Acquiror will prepare an unaudited balance sheet (athe "Closing Balance Sheet") of the Company as of the Closing Date, including a computation of the Net Working Capital as of the Closing Date. The Investor Acquiror will have twenty (20) Business Days deliver the Closing Balance Sheet to the Stockholders' Agent within 30 days after the Closing Date. If within 15 days following delivery of the CPR Notice during which to notify NMI in writing Closing Balance Sheet, the Stockholders' Agent has not given the Acquiror notice of any objections with respect the Stockholders' Agent's objection to the calculation Closing Balance Sheet (such notice must contain a statement of the CPR Payment basis of the objection), then the Net Working Capital reflected in the Closing Balance Sheet will be used in computing the Adjustment Amount, including the value of any non-cash consideration, net third party indebtedness (“Notice of Objection”). If the Investor fails Stockholders' Agent gives notice of objection, then the issues in dispute will be submitted to deliver a Notice of Objection in accordance with this Section 6(amutually acceptable certified public accountants (the "Accountants"), the CPR Payment Amount shall be conclusive and binding on the Partiesfor resolution within 30 days. If issues in dispute are submitted to the Investor submits a Notice of ObjectionAccountants for resolution, then (i) for fifteen (15) Business Days after each party will furnish to the date upon which NMI receives the Notice of Objection, the Parties will each use their commercially reasonable efforts Accountants with such workpapers and other documents and information relating to agree on the calculation of the disputed amounts issues as the Accountants may request and are available to that party (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) failing such agreement within such fifteen (15) Business Day periodthe determination by the Accountants, then as set forth in a notice delivered to both parties by the Investor Accountants, will be binding and NMI, acting jointly, shall refer the matter for resolution to the Independent Accounting Firm. Promptly (but in any event within five (5) Business Days) after engagement of the Independent Accounting Firm, the Investor, conclusive on the one hand, parties; and NMI, on (iii) the other hand, Acquiror and the Stockholders' Agent shall each deliver to equally share responsibility for the Independent Accounting Firm, a notice setting forth in reasonable detail their calculation, to the extent in dispute under the Notice of Objection, of the CPR Payment Amount as of the CPR Sale Transaction Closing Date or the CPR Dividend Payment Date, as applicable. Within fifteen (15) Business Days after receipt thereof, the Independent Accounting Firm shall deliver its determination of the disputed amounts and of the CPR Payment Amount as of the CPR Sale Transaction Closing Date or the CPR Dividend Payment Date, as applicable, which determination shall be final and binding on each of the Parties. For the avoidance of doubt, the only matter the Independent Accounting Firm shall have the authority to determine shall be the CPR Payment Amount, including the value of any non-cash consideration, net third party indebtedness. The fees and expenses of the Independent Accounting Firm shall be paid in equal proportions (i.e., 50% each) by the Investor, on the one hand, and NMI, on the other hand. The CPR Payment Amount that is final and binding on the Parties, as determined either through agreement of the Parties or through the action of the Independent Accounting Firm pursuant to this Section 6(a), is referred to as the “Final CPR Payment Amount”. The Independent Accounting Firm shall act as an expert under the New York CPLRAccountants.

Adjustment Procedures. (ai) The Investor Not later than 60 days after the Closing Date, the Buyer will have twenty prepare and deliver to Joseph Herson (20the "SELLERX' XXXXX") Business Days following delivery xx unaudited balance sheet (the "CLOSING BALANCE SHEET") of the CPR Notice during which to notify NMI in writing of any objections with respect to the calculation Company as of the CPR Payment AmountClosing Date, including consisting of a computation of the net book value of any non-cash considerationthe tangible assets (including without limitation receivables, net third party indebtedness security deposits and assets in respect of Taxes) of the Company (“Notice excluding the Distributed Assets, as defined in Section 1.7) as of Objection”). If the Investor fails to deliver a Notice Closing Date, less the book value of Objection the liabilities of the Company (excluding the Distributed Liabilities, as defined in Section 1.7) as of the Closing Date, all in accordance with this Section 6(agenerally accepted accounting principles consistently applied ("GAAP"), except as provided below. The tangible net book value reflected on the CPR Payment Amount Closing Balance Sheet is hereinafter called the "NET BOOK VALUE." The Closing Balance Sheet will be prepared in accordance with the following principles: (A) it will utilize the first in-first out (FIFO) method of inventory accounting; (B) the liabilities of the Company shall include any Tax liabilities associated with the conversion from the last in-first out (LIFO) method of accounting to the FIFO method of accounting; (C) there shall be conclusive included appropriate write-offs for doubtful accounts receivable and binding on the Parties. If the Investor submits a Notice of Objection, then (i) for fifteen (15) Business Days after the date upon which NMI receives the Notice of Objection, the Parties will each use their commercially reasonable efforts to agree on the calculation of the disputed amounts and (ii) failing such agreement within such fifteen (15) Business Day period, then the Investor and NMI, acting jointly, shall refer the matter for resolution to the Independent Accounting Firm. Promptly (but in any event within five (5) Business Days) after engagement of the Independent Accounting Firm, the Investor, on the one hand, and NMI, on the other hand, shall each deliver to the Independent Accounting Firm, a notice setting forth in reasonable detail their calculationbad debts, to the extent not already reserved for in dispute under the Notice listing of Objectionaccounts receivable, and for damaged, spoiled or obsolete inventory; (D) any receivables due the Company from any of the CPR Payment Amount as Sellers, any of the CPR Sale Transaction directors, officers, employees or Affiliates of the Company or any of the persons or entities contemplated by Section 7.8 shall be excluded as assets (except that any cash received contemporaneously with the Closing Date in satisfaction and payment of such receivables shall be included as assets); (E) the liabilities of the Company shall include appropriate accruals for all Tax liabilities of the Company associated with the distribution of the Distributed Assets and Distributed Liabilities or the CPR Dividend Payment Date, as applicable. Within fifteen (15) Business Days after receipt thereof, the Independent Accounting Firm shall deliver its determination forgiveness of any of the disputed amounts and Company's indebtedness or other liabilities or obligations owed to any of the CPR Payment Amount persons or entities referred to in Section 7.8 of this Agreement; (F) any amounts loaned or contributed by the Company to the Leasing Subsidiary (as defined in Section 1.7) shall not be included as an asset; (G) all goodwill carried on the Company's books shall not be included as an asset; (H) the Inducement Fee will not be included as a liability of the CPR Sale Transaction Company; (I) any liability of the Company owed to any persons or entities contemplated by Section 7.8 which is satisfied in connection with the Closing Date or shall not be included as a liability; and (J) the CPR Dividend Payment Date, as applicable, which determination values of the following asset categories shall be final and binding on each of the Parties. For the avoidance of doubt, the only matter the Independent Accounting Firm shall have the authority to determine shall be the CPR Payment Amount, including the value of any non-cash consideration, net third party indebtedness. The fees and expenses of the Independent Accounting Firm shall be paid in equal proportions (i.e., 50% each) by the Investor, on the one hand, and NMI, on the other hand. The CPR Payment Amount that is final and binding on the Parties, calculated as determined either through agreement of the Parties or through the action of the Independent Accounting Firm pursuant to this Section 6(a), is referred to as the “Final CPR Payment Amount”. The Independent Accounting Firm shall act as an expert under the New York CPLR.follows:

Adjustment Procedures. The Acquiror will prepare an unaudited balance sheet (athe "Closing Balance Sheet") of the Company as of the Closing Date, including a computation of the Net Working Capital as of the Closing Date. The Investor Acquiror will have twenty (20) Business Days deliver the Closing Balance Sheet to the Stockholders' Agents within 45 days after the Closing Date. If within 15 days following delivery of the CPR Notice during which to notify NMI in writing Closing Balance Sheet, the Stockholders' Agents have not given the Acquiror notice of any objections with respect an objection to the calculation Closing Balance Sheet (such notice must contain a statement of the CPR Payment basis of the objections) (a "Qualifying Objection"), then the Net Working Capital reflected in the Closing Balance Sheet will be used in computing the Adjustment Amount, including the value of any non-cash consideration, net third party indebtedness (“Notice of Objection”). If the Investor fails to deliver Stockholders' Agents give notice of a Notice Qualifying Objection (the date of such notice the "Objection in accordance with this Section 6(aDate"), then the CPR Payment Amount chief financial officer of the Acquiror and the Stockholders' Agents shall be conclusive attempt to resolve the dispute and binding on to agree in writing upon the PartiesNet Working Capital within 20 days after the Objection Date. If the Investor submits a Notice of Objectiondispute has not been resolved within such 20-day period, then the issues in dispute will be submitted to KPMG LLP, or another mutually acceptable certified public accountant which has not been retained by either the Acquiror or the Company within the preceding three calendar years (the "Accountants"), for resolution within 50 days after the Objection Date. If issues in dispute are submitted to the Accountants for resolution, (i) for fifteen (15) Business Days after each party will furnish the date upon which NMI receives the Notice of Objection, the Parties will each use their commercially reasonable efforts Accountants with such workpapers and other documents and information relating to agree on the calculation of the disputed amounts issues as the Accountants may request and are available to that party (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants, (ii) failing such agreement within such fifteen (15) Business Day periodthe determination by the Accountants, then as set forth in a notice delivered to both parties by the Investor Accountants, will be binding and NMI, acting jointly, shall refer the matter for resolution to the Independent Accounting Firm. Promptly (but in any event within five (5) Business Days) after engagement of the Independent Accounting Firm, the Investor, conclusive on the one hand, parties and NMI, on (iii) the other hand, Acquiror and the Stockholders' Agents shall each deliver to share the Independent Accounting Firm, a notice setting forth in reasonable detail their calculation, to the extent in dispute under the Notice of Objection, of the CPR Payment Amount as of the CPR Sale Transaction Closing Date or the CPR Dividend Payment Date, as applicable. Within fifteen (15) Business Days after receipt thereof, the Independent Accounting Firm shall deliver its determination of the disputed amounts and of the CPR Payment Amount as of the CPR Sale Transaction Closing Date or the CPR Dividend Payment Date, as applicable, which determination shall be final and binding on each of the Parties. For the avoidance of doubt, the only matter the Independent Accounting Firm shall have the authority to determine shall be the CPR Payment Amount, including the value of any non-cash consideration, net third party indebtedness. The fees and expenses of the Independent Accounting Firm Accountants based upon what portion of the changes called for in the Stockholders' Agents' Qualifying Objection are reflected in the final determination of the Net Working Capital by the Accountants, as follows: (1) the Stockholders' Agents shall be paid responsible for an amount equal to the total amount of such fees and expenses multiplied by a fraction, the numerator of which is the excess (if any) of (A) the Net Working Capital as shown on the Closing Balance Sheet (after adjusting the Closing Balance Sheet to reflect all of the changes called for in equal proportions the Qualifying Objection) over (i.e., 50% eachB) the Net Working Capital as finally determined by the InvestorAccountants, and the denominator of which is the excess of (C) the Net Working Capital as shown on the one hand, and NMI, Closing Balance Sheet (after adjusting the Closing Balance Sheet to reflect all of the changes called for in the Qualifying Objection) over (D) the Net Working Capital as shown on the other hand. The CPR Payment Amount that is final Closing Balance Sheet; and binding on (2) the Parties, as determined either through agreement Acquiror shall be responsible for the balance of the Parties or through the action of the Independent Accounting Firm pursuant to this Section 6(a), is referred to as the “Final CPR Payment Amount”. The Independent Accounting Firm shall act as an expert under the New York CPLRsuch fees and expenses.