Common use of Adjustment to the Preliminary Purchase Price Clause in Contracts

Adjustment to the Preliminary Purchase Price. (a) On or before the date that is one hundred twenty (120) days following the Closing Date, Buyer shall prepare and deliver to Seller a written statement (the “Closing Statement”) setting forth Buyer’s proposed calculations of (i) the Cash Amount as of the Calculation Time (“Closing Cash Amount”), (ii) the Indebtedness as of the Calculation Time (the “Closing Indebtedness Amount”), (iii) the Transaction Expenses as of the Calculation Time (the “Closing Transaction Expense Amount”), (iv) Net Working Capital as of the Calculation Time (“Closing Working Capital”), (v) the Receivables Adjustment Amount as of the Calculation Time (“Closing Receivables Adjustment Amount”), (vi) the Bond Exchange and Assumption Amount as of the Closing (the “Closing Bond Exchange and Assumption Amount”), (vii) the Performance Adjustment Amount as of the Closing (the “Closing Performance Adjustment Amount”) and (viii) the Capex Deficiency as of the Calculation Time (the “Closing Capex Deficiency”). The Closing Statement shall be prepared in accordance with Section 4.5(f). (b) Seller shall have sixty (60) days (a “Review Period”) after Xxxxx’s delivery of the Closing Statement to review the same. During the Review Period, Seller and its duly authorized Representatives shall, upon reasonable notice, have reasonable access, at reasonable times during regular business hours, to the personnel, work papers and non-privileged books and records of the Business used in connection with the preparation of the Closing Statement for the limited purpose of Seller’s confirmation of the same. Without limiting the generality of the foregoing but subject to the terms of the preceding sentence, Seller and/or a firm of independent public accountants retained by Seller shall be permitted to discuss with Buyer and its accountants the Closing Statement. If Seller seeks to dispute any items in the Closing Statement, Seller shall, prior to the expiration of the Review Period, deliver written notice to Buyer of the same, specifying in reasonable detail the rationale for each such permitted dispute and the amount(s) in dispute, and attaching reasonably detailed supporting information and Seller’s proposed modifications to the Closing Statement (such notice, the “Dispute Notice”). If Seller does not deliver a Dispute Notice in accordance with this Section 4.5 prior to the expiration of the Review Period, the Closing Statement shall be deemed final and binding on the Parties for all purposes under this Agreement. Only disputes with respect to the Closing Statement (as permitted hereby) are to be addressed in the Dispute Notice, and all other disputes hereunder shall be subject to Section 13.3. Buyer and Xxxxxx shall attempt in good faith to reach an agreement as to any matters properly identified in a timely delivered Dispute Notice as being in dispute. If Buyer and Seller fail to resolve all such matters included in the Dispute Notice within thirty (30) days after Seller’s timely delivery of such Dispute Notice to Buyer (the “Resolution Period”) (or such longer period as Buyer and Seller may mutually agree), then any matters identified in such Dispute Notice that remain in dispute following the expiration of the Resolution Period shall, subject to the last sentence of this Section 4.5(b), be finally and conclusively determined by BDO USA, P.C. or such other independent accounting firm that is mutually selected by the Buyer and Seller (the “Accounting Firm”) (it being understood that in making such determination, the Accounting Firm shall be functioning as an expert and not as an arbitrator). Each of Seller and Buyer shall execute and deliver a customary engagement letter as may be reasonably requested by the Accounting Firm. Seller and Xxxxx shall instruct the Accounting Firm to promptly, but no later than thirty (30) days after the deadline set forth in the Accounting Firm Notice (as the same may be amended by the mutual written agreement of the Accounting Firm, Buyer and Seller), determine (based solely on the written presentations of Buyer and Seller timely delivered to the Accounting Firm in accordance with this Section 4.5(b) and not by independent review) only those matters remaining in dispute and to render a written report as to such disputed matters and the resulting calculations that form part of the Closing Statement, and including the Accounting Firm’s rationale for such determinations, which report, absent manifest error, shall thereupon be conclusive and binding upon the Parties for all purposes hereunder. Buyer and Seller shall instruct the Accounting Firm that, within five (5) business days following its acceptance of its appointment as the Accounting Firm, it shall deliver to Buyer and Seller a written notice (the “Accounting Firm Notice”) setting forth (i) the deadline for Buyer’s and Seller’s submission of the written presentations referenced in the immediately preceding sentence (which deadline shall in all events be (A) the same for Buyer and Seller and (B) no sooner than thirty (30) days following the date of delivery of the Accounting Firm Notice (unless otherwise mutually agreed in writing among the Accounting Firm, Buyer and Seller) and no later than sixty (60) days following the date of the Accounting Firm Notice) and (ii) the format in which Buyer and Seller are to submit their written presentations (which format shall be reasonably acceptable to Buyer and Seller). None of Parent, Seller or Buyer shall engage or participate in any ex parte communications or discussions with the Accounting Firm related to any disputed items in the Dispute Notice or the Accounting Firm’s determination with respect to any such disputed item. A copy of all materials submitted to the Accounting Firm pursuant to the immediately preceding sentence shall be provided by Seller or Buyer, as applicable, no later than the deadline set forth in the Accounting Firm Notice (as the same may be amended by the mutual written consent of the Accounting Firm, Buyer and Seller), and a copy of such materials shall be provided to the other Party concurrently with the submission thereof to the Accounting Firm. In resolving any disputed item, the Accounting Firm shall be bound by the provisions of this Section 4.5(b) and Section 4.5(f) and may not assign a value to any item greater than the greatest value for such item claimed by Buyer or Seller, or less than the smallest value for such item claimed by Buyer or Seller. The fees and expenses of the Accounting Firm shall be paid by Xxxxx and Seller on a pro rata basis based upon the degree to which the Accounting Firm has accepted the respective positions of Seller or Buyer (which shall be determined by the Accounting Firm). If, before the Accounting Firm renders its determination with respect to the disputed items in accordance with this Section 4.5(b), (x) Seller notifies Buyer and the Accounting Firm of its agreement with any items in the Closing Statement or (y) Buyer notifies Seller and the Accounting Firm of its agreement with any items in the Dispute Notice, then in each case such items as so agreed shall be conclusive and binding on all Parties for all purposes hereunder immediately upon such notice (and the Person providing such notice of acceptance shall pay the portion of the fees and expenses of the Accounting Firm relating to such item). (c) The calculation of the Closing Cash Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Cash Amount” for purposes of this Agreement. The calculation of the Closing Indebtedness Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Indebtedness Amount” for purposes of this Agreement. The calculation of the Closing Transaction Expense Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Transaction Expense Amount” for purposes of this Agreement. The calculation of Net Working Capital, as finally determined pursuant to this Section 4.5, shall constitute the “Final Working Capital” for purposes of this Agreement. The calculation of the Closing Receivables Adjustment Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Receivables Adjustment Amount” for purposes of this Agreement. The calculation of the Closing Bond Exchange and Assumption Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Bond Exchange and Assumption Amount” for purposes of this Agreement. The calculation of the Closing Performance Adjustment Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Performance Adjustment Amount” for purposes of this Agreement. The calculation of the Closing Capex Deficiency, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Capex Deficiency” for purposes of this Agreement. The date on which the Final Closing Cash Amount, the Final Closing Indebtedness Amount, the Final Closing Transaction Expense Amount, the Final Working Capital, the Final Closing Receivables Adjustment Amount the Final Closing Bond Exchange and Assumption Amount, the Final Closing Performance Adjustment Amount and the Final Closing Capex Deficiency are finally determined in accordance with this Section 4.5 is hereinafter referred to as the “Determination Date”.

Adjustment to the Preliminary Purchase Price. (a) On or before the date that is one hundred twenty ninety (12090) days following the Closing Date, Buyer shall prepare and deliver to Seller Parent a written statement (the “Closing Statement”) setting forth Buyer’s proposed final calculations of (i) the Cash Amount as of the Calculation Time open of business on the Closing Date (“Closing Cash Amount”), (ii) the Indebtedness as of the Calculation Time open of business on the Closing Date (the “Closing Indebtedness AmountIndebtedness”), (iii) the Transaction Expenses as of the Calculation Time open of business on the Closing Date (the “Closing Transaction Expense Expenses Amount”), ) and (iv) Net Working Capital as of the Calculation Time open of business on the Closing Date (“Closing Working Capital”), (v) the Receivables Adjustment Amount as of the Calculation Time (“Closing Receivables Adjustment Amount”), (vi) the Bond Exchange and Assumption Amount as of the Closing (the “Closing Bond Exchange and Assumption Amount”), (vii) the Performance Adjustment Amount as of the Closing (the “Closing Performance Adjustment Amount”) and (viii) the Capex Deficiency as of the Calculation Time (the “Closing Capex Deficiency”). The Closing Statement shall be prepared in accordance with Section 4.5(f4.5(g). Seller Parent and Buyer agree that the purpose of the process set forth in this Section 4.5 is solely to determine the Final Cash Amount, Final Indebtedness, Final Transaction Expenses Amount and the Final Working Capital in accordance with the terms of this Agreement, and such process is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies (for the purpose of determining the Final Cash Amount, Final Indebtedness, Final Transaction Expenses Amount or the Final Working Capital) in a manner inconsistent with the Agreed Accounting Principles; rather, this Section 4.5 requires that the calculations of Closing Cash Amount, Final Cash Amount, Closing Indebtedness, Final Indebtedness, Closing Transaction Expenses Amount, Final Transaction Expenses Amount, Closing Working Capital and Final Working Capital be done in a manner consistent with Section 4.5(g). (b) Seller Parent shall have sixty forty-five (6045) days (a the “Review Period”) after XxxxxBuyer’s delivery of the Closing Statement to review the same. During the Review Period, Seller Parent and its duly authorized Representatives advisors and representatives shall, upon reasonable notice, have full, complete and continuing access at all reasonable accesstimes, at reasonable times including during regular business hours, to the personnel, properties, work papers and non-privileged papers, books and records of the Business pertaining to or used in connection with the preparation of the Closing Statement to the extent necessary for the limited purpose of SellerSeller Parent’s confirmation of the same. Without limiting the generality of the foregoing but subject to the terms of the preceding sentenceforegoing, Seller Parent and/or a firm of independent public accountants retained designated by Seller Parent (“Seller Parent’s Accountants”) shall be permitted to discuss with Buyer and its accountants the Closing Statement and shall be provided copies of the relevant records and working papers of Buyer and its accountants related to the Closing Statement. If Seller seeks to dispute Parent so disputes any items in the Closing Statement, Seller shallParent may, prior to the expiration of within the Review Period, deliver one written notice to Buyer of the same, specifying in reasonable detail the rationale for each such permitted dispute and the amount(s) in dispute, and and, if practicable, attaching reasonably detailed supporting information and SellerSeller Parent’s proposed modifications to the Closing Statement (such notice, the “Dispute Notice”). If Seller does not deliver a Dispute Notice in accordance with this Section 4.5 prior to the expiration of the Review Period, the Closing Statement shall be deemed final and binding on the Parties for all purposes under this Agreement. Only disputes with respect to the Closing Statement (as permitted hereby) are to be addressed in the Dispute Notice, and all other disputes hereunder shall be subject to Section 13.3. The Closing Statement will be deemed to be accepted by and shall be conclusive for purposes of this Agreement except to the extent, if any, that Seller Parent shall have delivered within the Review Period a Dispute Notice. Buyer and Xxxxxx Seller Parent shall attempt in good faith to reach an agreement as to any matters properly identified in a timely delivered Dispute Notice as being in disputedispute and all discussions related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule (and evidence of such discussions shall not be admissible or used by any party in any future proceedings between the parties, including any proceedings before or with the Accounting Firm). If Buyer and Seller Parent fail to resolve all such matters included in the Dispute Notice within thirty (30) days after SellerSeller Parent’s timely delivery of such Dispute Notice to Buyer (the “Resolution Period”) (or such longer period as Buyer and Seller may mutually agree), then any matters identified in such Dispute Notice that remain in dispute following the expiration of the Resolution Period shall, subject to the last sentence of this Section 4.5(b), be finally and conclusively determined by BDO USA, P.C. KPMG LLP or such other independent accounting firm that is mutually selected by the Buyer and Seller parties (the “Accounting Firm”) (it being understood that in making such determination, the Accounting Firm shall be functioning as an expert and not as an arbitrator). Each of Seller Parent and Buyer shall execute and deliver a customary engagement letter as may be reasonably requested by the Accounting Firm. Seller Parent and Xxxxx Buyer shall instruct the Accounting Firm to promptly, but no later than thirty (30) days after the deadline set forth in the Accounting Firm Notice (as the same may be amended by the mutual written agreement of the Accounting Firm, Buyer and SellerSeller Parent), determine (based solely on the written presentations of Buyer and Seller Parent timely delivered to the Accounting Firm in accordance with this Section 4.5(b) and not by independent review) only those matters remaining in dispute and to render a written report as to such the disputed matters and the resulting calculations that form part of the Closing StatementFinal Cash Amount, Final Indebtedness, Final Transaction Expenses Amount and including the Accounting Firm’s rationale for such determinationsFinal Working Capital, which report, absent manifest error, shall thereupon be conclusive and binding upon the Parties parties hereto for all purposes hereunder. Buyer and Seller Parent shall instruct the Accounting Firm that, within five (5) business days following its acceptance of its appointment as the Accounting Firm, it shall deliver to Buyer and Seller Parent a written notice (the “Accounting Firm Notice”) setting forth (i) the deadline for Buyer’s and SellerSeller Parent’s submission of the written presentations referenced in the immediately preceding sentence (which deadline shall in all events be (A) the same for Buyer and Seller Parent and (B) no sooner than thirty (30) days following the date of delivery of the Accounting Firm Notice (unless otherwise mutually agreed in writing among the Accounting Firm, Buyer and SellerSeller Parent) and no later than sixty (60) days following the date of the Accounting Firm Notice) and (ii) the format in which Buyer and Seller Parent are to submit their written presentations (which format shall be reasonably acceptable to Buyer and SellerSeller Parent). None of Parent, Seller or Buyer shall engage or participate in any ex parte communications or discussions with the The Accounting Firm related to any disputed items in shall make its determination based solely on the Dispute Notice or the Accounting Firm’s determination with respect to any such disputed item. A copy basis of all materials (A) a single written presentation submitted to the Accounting Firm pursuant to the immediately preceding sentence shall be provided by each of Buyer and Seller or Buyer, as applicable, Parent no later than the deadline set forth in the Accounting Firm Notice (as the same may be amended by the mutual written consent of the Accounting Firm, Buyer and SellerSeller Parent), which the Accounting Firm shall be instructed to distribute to Buyer and a copy Seller Parent upon receipt of both such presentations, and (B) one written response of Buyer and Seller Parent to each such presentation so submitted, which the Accounting Firm shall be instructed to distribute to Buyer and the Seller Parent upon receipt of such materials shall be provided to the other Party concurrently with the submission thereof to the Accounting Firmresponses. In resolving any disputed item, the Accounting Firm shall be bound by the provisions of this Section 4.5(b) and Section 4.5(f4.5(g) and may not assign a value to any item greater than the greatest value for such item claimed by Buyer or SellerSeller Parent, or less than the smallest value for such item claimed by Buyer or SellerSeller Parent. The fees and expenses of the Accounting Firm shall be paid by Xxxxx and Seller on a pro rata basis based upon the degree party whose position with respect to which the Accounting Firm has accepted the respective positions of Seller or Buyer (which shall be determined by matter in dispute is furthest from the Accounting Firm)’s final determination. If, before the Accounting Firm renders its determination with respect to the disputed items in accordance with this Section 4.5(b), (x) Seller Parent notifies Buyer and the Accounting Firm of its agreement with any items in the Closing Statement or (y) Buyer notifies Seller Parent and the Accounting Firm of its agreement with any items in the Dispute Notice, then in each case such items as so agreed shall be conclusive and binding on all Parties parties hereto for all purposes hereunder immediately upon such notice (and the Person providing such notice of acceptance shall pay the portion of the fees and expenses of the Accounting Firm relating to such itemFirm). (c) The calculation of the Closing Cash Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Cash Amount” for purposes of this Agreement. The calculation of the Closing Indebtedness Indebtedness, as finally determined pursuant to this Section 4.5, shall constitute the “Final Indebtedness” for purposes of this Agreement. The calculation of the Closing Transaction Expenses Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Indebtedness Transaction Expenses Amount” for purposes of this Agreement. The calculation of the Closing Transaction Expense Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Transaction Expense Amount” for purposes of this Agreement. The calculation of Net Working Capital, as finally determined pursuant to this Section 4.5, shall constitute the “Final Working Capital” for purposes of this Agreement. The calculation of the Closing Receivables Adjustment Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Receivables Adjustment Amount” for purposes of this Agreement. The calculation of the Closing Bond Exchange and Assumption Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Bond Exchange and Assumption Amount” for purposes of this Agreement. The calculation of the Closing Performance Adjustment Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Performance Adjustment Amount” for purposes of this Agreement. The calculation of the Closing Capex Deficiency, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Capex Deficiency” for purposes of this Agreement. The date on which the Final Closing Cash Amount, the Final Closing Indebtedness AmountIndebtedness, the Final Closing Transaction Expense Amount, the Final Working Capital, the Final Closing Receivables Adjustment Amount the Final Closing Bond Exchange and Assumption Amount, the Final Closing Performance Adjustment Expenses Amount and the Final Closing Capex Deficiency Working Capital are finally determined in accordance with this Section 4.5 is hereinafter referred to as the “Determination Date.”.

Adjustment to the Preliminary Purchase Price. (a) On or before sixty (60) days following the date that is one hundred twenty Closing Date (120which may be extended by an additional fifteen (15) days upon Buyer’s written notice to Seller Parent no later than sixty (60) days following the Closing Date, if Buyer determines it to be reasonably necessary under the circumstances), Buyer shall prepare cause to be prepared and deliver delivered to Seller Parent a written statement (the “Closing Statement” and the date on which the Closing Statement is delivered to Seller Parent, the “Delivery Date”) setting forth Buyer’s proposed final calculations of the amount of Net Working Capital, the Purchase Price and the adjustments (iif any) to reconcile the Cash Amount as Estimated Purchase Price to the final calculation of the Calculation Time (“Closing Cash Amount”), (ii) the Indebtedness as of the Calculation Time (the “Closing Indebtedness Amount”), (iii) the Transaction Expenses as of the Calculation Time (the “Closing Transaction Expense Amount”), (iv) Net Working Capital as of the Calculation Time (“Closing Working Capital”), (v) the Receivables Adjustment Amount as of the Calculation Time (“Closing Receivables Adjustment Amount”), (vi) the Bond Exchange and Assumption Amount as of the Closing (the “Closing Bond Exchange and Assumption Amount”), (vii) the Performance Adjustment Amount as of the Closing (the “Closing Performance Adjustment Amount”) and (viii) the Capex Deficiency as of the Calculation Time (the “Closing Capex Deficiency”)Purchase Price. The Closing Statement and the determinations and calculations contained therein shall be determined from the books and records of the Business in a manner consistent with the Agreed Accounting Principles and in accordance with the definitions set forth in this Agreement. The Net Working Capital shall be prepared in accordance a manner consistent with Section 4.5(fExhibit B (including in respect of format and reflecting the same line items and same categorical adjustments as are reflected in Exhibit B). Any and all effects on the Business, the Purchased Assets or the Assumed Liabilities of any distributions, financing or refinancing arrangements entered into by Buyer on or after the Closing Date or any other transaction entered into by Buyer on or after the Closing Date shall be entirely disregarded. It shall be assumed that the Business shall be continued as a going concern and there shall not be taken into account any of the plans, transactions or changes that Buyer intends to initiate or make or cause to be initiated or made on or after the Closing Date with respect to the Business, the Purchased Assets or the Assumed Liabilities, or any facts or circumstances that are unique or particular to Buyer or any assets or liabilities of Buyer, or any obligation for the payment of the Purchase Price hereunder. (b) Seller Parent shall have sixty (60) days (a the “Review Period”) after Xxxxx’s delivery of the Closing Statement Delivery Date to review the sameClosing Statement. During the Review Period, Buyer shall cooperate with Seller Parent’s review of the Closing Statement, and Seller Parent and its duly authorized Representatives advisors and representatives shall, upon reasonable notice, have reasonable access, at reasonable times access during regular business hours, to the personnelpersonnel with knowledge of the relevant subject matters, properties, work papers and non-privileged papers, books and records of the Business pertaining to or used in connection with the preparation of the Closing Statement for the limited purpose of SellerSeller Parent’s confirmation of the same. Without limiting the generality of the foregoing but subject to the terms of the preceding sentence, Seller and/or a firm of independent public accountants retained by Seller shall be permitted to discuss with Buyer and its accountants the Closing Statement. If Seller seeks to dispute Parent disputes any items in the Closing Statement, Seller Parent shall, prior to the expiration of within the Review Period, deliver written notice to Buyer of the same, specifying in reasonable detail each disputed item in the rationale for each such permitted dispute and Closing Statement, Seller Parent’s calculation of the amount(s) in disputeof the disputed items, and attaching reasonably detailed supporting information and SellerSeller Parent’s proposed modifications to the Closing Statement Statement, Purchase Price and components thereof (such notice, the “Dispute Notice”). If Seller does not deliver a Dispute Notice in accordance with this Section 4.5 prior to the expiration of the Review Period, the Closing Statement shall be deemed final and binding on the Parties for all purposes under this Agreement. Only disputes with respect to the Closing Statement (as permitted hereby) are to be addressed in the Dispute Notice, and all other disputes hereunder shall be subject to Section 13.313.2. Buyer and Xxxxxx Seller Parent shall attempt in good faith use commercially reasonable efforts for a period of fifteen (15) days (or such longer period as they may mutually agree) to reach an agreement as to any matters properly identified in a timely delivered Dispute Notice as being in dispute. If Buyer and Seller fail Parent fails to resolve all such matters included in the deliver a Dispute Notice within thirty (30) days after Seller’s timely delivery of such Dispute Notice to Buyer (the “Resolution Review Period”) (or such longer period as Buyer and Seller may mutually agree), then if any matters identified item is not mentioned in dispute in such Dispute Notice that remain or if Buyer agrees to accept any item set forth in the Dispute Notice, then such item is determined to be accepted for purposes of the final determination of the Purchase Price, and any items remaining in dispute following the after expiration of the Resolution Period shall, subject fifteen (15) day period following delivery of the Dispute Notice are to the last sentence of this Section 4.5(b), be finally and conclusively determined by BDO USA, P.C. Ernst & Young LLP or such other independent nationally recognized certified public accounting firm that is mutually selected by the Buyer and Seller parties (the “Accounting Firm”) (it being understood that in making such determination, the Accounting Firm shall be functioning as an accounting expert and not as an arbitrator). Each of Seller Parent and Buyer shall execute and deliver a customary engagement letter as may be reasonably requested by the Accounting Firm. Seller Parent and Xxxxx Buyer shall instruct the Accounting Firm to promptly, but no later than thirty (30) days after the deadline set forth in the Accounting Firm Notice (as the same may be amended by the mutual written agreement of the Accounting Firm, Buyer and SellerSeller Parent), determine (based solely on the written presentations of Buyer and Seller Parent timely delivered to the Accounting Firm in accordance with this Section 4.5(b) and not by independent review) only those matters items remaining in dispute in the Closing Statement (and not with respect to any other matter related to this Agreement, including the interpretation thereof) and to render a written report as to such the remaining disputed matters and the resulting calculations that form part calculation of the Closing Statement, and including Purchase Price based on the Accounting Firm’s rationale for final determination in respect of such determinationsitems in dispute, which report, absent manifest error, shall thereupon be conclusive and binding upon the Parties parties hereto for all purposes hereunder. Buyer and Seller Parent shall instruct the Accounting Firm that, within five (5) business days Business Days following its acceptance of its appointment as the Accounting Firm, it shall deliver to Buyer and Seller Parent a written notice (the “Accounting Firm Notice”) setting forth (i) the deadline for Buyer’s and SellerSeller Parent’s submission of the written presentations referenced in the immediately preceding sentence (which deadline shall in all events be (A) the same for Buyer and Seller Parent and (B) no sooner than thirty (30) days following the date of delivery of the Accounting Firm Notice (unless otherwise mutually agreed in writing among the Accounting Firm, Buyer and SellerSeller Parent) and no later than sixty (60) days following the date of the Accounting Firm Notice) and (ii) the format in which Buyer and Seller Parent are to submit their written presentations (which format shall be reasonably acceptable to Buyer and SellerSeller Parent). None of Parent, Seller or Buyer shall engage or participate in any ex parte communications or discussions with the Accounting Firm related to any disputed items in the Dispute Notice or the Accounting Firm’s determination with respect to any such disputed item. A copy of all materials submitted to the Accounting Firm pursuant to the immediately preceding sentence shall be provided by Seller Parent or Buyer, as applicable, no later than the deadline set forth in the Accounting Firm Notice (as the same may be amended by the mutual written consent of the Accounting Firm, Buyer and SellerSeller Parent), and a copy of such materials shall be provided to the other Party party hereto concurrently with the submission thereof to the Accounting Firm. In resolving any disputed item, the Accounting Firm shall be bound by the provisions of this Section 4.5(b) and Section 4.5(f) 4.5 and may not assign a value to any item greater than the greatest value for such item claimed by Buyer or SellerSeller Parent, or less than the smallest value for such item claimed by Buyer or SellerSeller Parent. Subject to the following sentence, each party shall bear its own costs and expenses in connection with the resolution of such disputed items set forth in a Dispute Notice by the Accounting Firm. The fees and expenses of the Accounting Firm shall be paid borne by Xxxxx Seller Parent and Seller on a pro rata basis based upon the degree Buyer, in inverse relation to which their success with respect to any disputes submitted to the Accounting Firm has accepted the respective positions of Seller or Buyer (which shall be determined by the Accounting Firm)for resolution. If, before the Accounting Firm renders its determination with respect to the disputed items in accordance with this Section 4.5(b), (x) Seller Parent notifies Buyer and the Accounting Firm of its agreement with any items in the Closing Statement or (y) Buyer notifies Seller Parent and the Accounting Firm of its agreement with any items in the Dispute Notice, then in each case such items as so agreed shall be conclusive and binding on all Parties parties hereto for all purposes hereunder immediately upon such notice (and the Person providing such notice of acceptance shall pay the portion of the fees and expenses of the Accounting Firm relating to such item)notice. (c) The calculation of After the Closing Cash Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Cash Amount” for purposes of this Agreement. The calculation of the Closing Indebtedness Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Indebtedness Amount” for purposes of this Agreement. The calculation of the Closing Transaction Expense Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Transaction Expense Amount” for purposes of this Agreement. The calculation of Net Working Capital, as finally determined pursuant to this Section 4.5, shall constitute the “Final Working Capital” for purposes of this Agreement. The calculation of the Closing Receivables Adjustment Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Receivables Adjustment Amount” for purposes of this Agreement. The calculation of the Closing Bond Exchange and Assumption Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Bond Exchange and Assumption Amount” for purposes of this Agreement. The calculation of the Closing Performance Adjustment Amount, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Performance Adjustment Amount” for purposes of this Agreement. The calculation of the Closing Capex Deficiency, as finally determined pursuant to this Section 4.5, shall constitute the “Final Closing Capex Deficiency” for purposes of this Agreement. The date on which the Final Closing Cash Amount, the Final Closing Indebtedness Amount, the Final Closing Transaction Expense Amount, the Final Working Capital, the Final Closing Receivables Adjustment Amount the Final Closing Bond Exchange and Assumption Amount, the Final Closing Performance Adjustment Amount and the Final Closing Capex Deficiency are Purchase Price has been finally determined in accordance with Section 4.5(b) (as so determined, the “Final Purchase Price”), the following payments shall be made: (i) If the Final Purchase Price exceeds the Estimated Purchase Price (such excess, the “Upward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Purchase Price), Buyer shall pay the Upward Adjustment Amount pursuant to instructions furnished by Seller Parent. (ii) If the Estimated Purchase Price exceeds the Final Purchase Price (such excess, the “Downward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Purchase Price), Seller Parent shall pay the Downward Adjustment Amount pursuant to instructions furnished by Buyer. (d) Any payment required to be made pursuant to this Section 4.5 is hereinafter referred shall be made together with interest thereon from the Closing Date to (and including) the date of payment at the rate of interest per annum equal to 30 day LIBOR in effect on the Closing Date as reported in The Wall Street Journal. (e) All payments made pursuant to this Section 4.5 shall be treated by the “Determination Date”parties hereto as adjustments to the Purchase Price for income Tax purposes, to the extent permitted by applicable Requirements of Law.