Common use of Closing Date Adjustment Clause in Contracts

Closing Date Adjustment. The purpose of the purchase price adjustment set forth in this Section 2.3 is to measure any changes in the Cash and Cash Equivalents, Working Capital, Indebtedness of the Company and the Company Subsidiaries, and Transaction Expenses, in each case from their respective targets and/or estimated amounts to the final amounts on the same accounting bases consistently applied to reflect transactions and/or events up to and conditions existing at the Closing Date. Not less than five (5) days prior to the Closing Date, Seller shall deliver to Buyer a statement (the “Estimated Closing Statement”), which shall set forth a good faith estimate of (i) the Cash and Cash Equivalents of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Cash and Cash Equivalents”), (ii) the Indebtedness of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Indebtedness”), (iii) the Transaction Expenses (the “Estimated Transaction Expenses”), and (iv) the Working Capital of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Working Capital”). The Estimated Closing Statement shall be prepared in a manner consistent with (A) the definitions of Cash and Cash Equivalents, Indebtedness, Transaction Expenses, and Working Capital set forth herein and (B) the methodologies, practices and assumptions set forth in the Working Capital Schedule. Prior to the Closing, Seller shall (x) provide Buyer and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the (1) Books and Records and (2) senior employees and accountants of the Company and the Company Subsidiaries (as reasonably requested by Buyer) and (y) cooperate with Buyer in seeking to obtain work papers from Seller, the Company and the Company Subsidiaries pertaining to or used in connection with the preparation of the Estimated Closing Statement and provide Buyer with copies thereof (as reasonably requested by Buyer). Seller and Buyer in good faith shall seek to resolve any differences that they may have with respect to the computation of any of the items in the Estimated Closing Statement; provided that if the parties are unable to resolve all such differences prior to the Closing, the amounts of the Estimated Closing Working Capital, Estimated Closing Indebtedness, Estimated Closing Cash and Cash Equivalents and Estimated Transaction Expenses as reflected in the Estimated Closing Statement shall be used for purposes of calculating the purchase price adjustment on the Closing Date.

Closing Date Adjustment. The purpose of the purchase price adjustment set forth in this Section 2.3 is Company shall deliver to measure any changes in the Cash and Cash Equivalents, Working Capital, Indebtedness of the Company and the Company Subsidiaries, and Transaction Expenses, in each case from their respective targets and/or estimated amounts to the final amounts on the same accounting bases consistently applied to reflect transactions and/or events up to and conditions existing Buyer (a) at the Closing Date. Not less than five least three (53) days Business Days prior to the Closing Date, Seller shall deliver to Buyer a statement (the “Estimated Closing Statement”), which shall set forth a be prepared in good faith estimate by the Company, setting forth the Company’s good faith estimates (which estimates shall be subject to the reasonable review of Buyer) of (i) the Cash and Cash Equivalents of the Company and the Company Subsidiaries Final Working Capital (as of the Closing (the estimated, “Estimated Closing Cash and Cash EquivalentsWorking Capital”), (ii) the Indebtedness of the Final Company and the Company Subsidiaries Transaction Expenses (as of the Closing (the estimated, “Estimated Closing IndebtednessCompany Transaction Expenses”), (iii) the Transaction Expenses Final Indebtedness (the as estimated, “Estimated Transaction ExpensesIndebtedness”), and (iv) the Working Capital amount of Initial Merger Consideration and the Initial Distribution derived therefrom and (v) the amount of current liabilities associated with each of the Company Excluded Accounts (and separately identifying the Company Subsidiaries Excluded Payroll Accounts) as of the Closing calculated in accordance with the Accounting Principles, and (b) at least one (1) Business Day prior to the Closing Date, a statement setting forth, with respect to each Seller, such Seller’s name and Pro Rata Portion (with respect to the Initial Distribution and any subsequent Merger Consideration Distributions) and the number of shares of Capital Stock and vested Company Options owned by such Seller, in each case as of the Closing and together with reasonable supporting documentation. In the event that (A) the Estimated Working Capital plus (B) the amount, if any, by which the Excluded Payroll Accounts Minimum exceeds the aggregate of the Excluded Payroll Accounts, minus (C) the amount, if any, by which the aggregate of Excluded Payroll Accounts exceeds the Excluded Payroll Accounts Maximum, in each case as reflected on the Estimated Closing Statement, exceeds $10,460,000.00 (Ten Million Four Hundred Sixty Thousand Dollars) (the “Working Capital Threshold”), the Initial Merger Consideration will be increased by such excess (the “Excess Payment”). In the event that (A) the Estimated Working Capital plus (B) the amount, if any, by which the Excluded Payroll Accounts Minimum exceeds the aggregate of the Excluded Payroll Accounts, minus (C) the amount, if any, by which the aggregate of Excluded Payroll Accounts exceeds the Excluded Payroll Accounts Maximum, in each case as reflected on the Estimated Closing Statement, is less than the Working CapitalCapital Threshold, the Initial Merger Consideration will be decreased by such shortfall (the “Shortfall Reduction”). The Estimated Final Merger Consideration will be subject to further adjustment upon final, post-Closing Statement shall be prepared in a manner consistent with (A) determination of the definitions of Cash and Cash EquivalentsFinal Working Capital, Indebtedness, Final Company Transaction Expenses, Final Indebtedness and Working Capital set forth herein and (B) the methodologiesExcluded Payroll Accounts, practices and assumptions as provided in Section 2.8.2. The calculations set forth in the Working Capital Schedule. Prior this Section 2.8.1 shall be subject to the Closing, Seller shall (x) provide reasonable review of Buyer and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the (1) Books and Records and (2) senior employees and accountants of the Company and the Company Subsidiaries (as shall reflect any adjustments reasonably requested by Buyer) and (y) cooperate with Buyer in seeking to obtain work papers from Seller, the Company and the Company Subsidiaries pertaining to or used in connection that are consistent with the preparation of the Estimated Closing Statement requirements of, and provide Buyer with copies thereof (as reasonably requested by Buyer). Seller and Buyer in good faith shall seek to resolve any differences that they may have with respect to the computation of any of the items in the Estimated Closing Statement; provided that if the parties are unable to resolve all such differences prior to the Closingdefinitions set forth in, the amounts of the Estimated Closing Working Capital, Estimated Closing Indebtedness, Estimated Closing Cash and Cash Equivalents and Estimated Transaction Expenses as reflected in the Estimated Closing Statement shall be used for purposes of calculating the purchase price adjustment on the Closing Datethis Agreement.

Closing Date Adjustment. The purpose of At the purchase price adjustment Closing, the Purchase Price will be adjusted on a dollar for dollar basis as set forth in this Section 2.3 is to measure any changes in the Cash and Cash Equivalents, Working Capital, Indebtedness of the Company and the Company Subsidiaries, and Transaction Expenses, in each case from their respective targets and/or estimated amounts to the final amounts on the same accounting bases consistently applied to reflect transactions and/or events up to and conditions existing at the Closing Date3.3. Not more than ten (10) Business Days, but in no event less than five three (53) days prior to Business Days, before the Closing Date, the Seller shall deliver to Buyer a shall, in good faith, prepare an estimated statement (the “Estimated Closing Statement”), which shall set forth a good faith estimate of (i) the Cash and Cash Equivalents of the Company and the Company Subsidiaries Net Working Capital as of the open of business on the Closing Date consistent with the Seller's past practices, using the Seller's then available financial information (the “"Estimated Closing Cash and Cash Equivalents”), (iiNet Working Capital Statement") the Indebtedness of the Company and the Company Subsidiaries as of such date. If the Closing (the “Estimated Closing Indebtedness”), (iii) the Transaction Expenses (the “Estimated Transaction Expenses”), and (iv) the estimated Net Working Capital is $2,000,000 or less, the Buyer shall accept the Estimated Net Working Capital Statement for purposes of adjusting the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Working Capital”Cash Purchase Price pursuant to this Section 3.3(a). The Estimated Closing Statement shall be prepared in a manner consistent with (A) If the definitions of Cash and Cash Equivalents, Indebtedness, Transaction Expenses, and estimated Net Working Capital set forth herein and (B) the methodologies, practices and assumptions set forth in the Working Capital Schedule. Prior to the Closing, Seller shall (x) provide Buyer and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the (1) Books and Records and (2) senior employees and accountants of the Company and the Company Subsidiaries (as reasonably requested by Buyer) and (y) cooperate with Buyer in seeking to obtain work papers from Selleris greater than $2,000,000, the Company and the Company Subsidiaries pertaining to or used in connection with the preparation Buyer shall, not later than three (3) calendar days after receipt of the Estimated Closing Statement Net Working Capital Statement, provide the Seller with a list of those items, if any, to which the Buyer takes exception and provide Buyer with copies thereof the Buyer's proposed adjustments (as reasonably requested by the "Buyer's Adjustments"). Seller and If the Buyer in good faith shall seek fails to resolve any differences that they may have with respect to deliver the computation of any of the items in the Estimated Closing Statement; provided that if the parties are unable to resolve all such differences prior to the Closing, the amounts Buyer's Adjustments within three (3) calendar days following receipt of the Estimated Closing Net Working CapitalCapital Statement, Estimated Closing Indebtedness, Estimated Closing Cash and Cash Equivalents and Estimated Transaction Expenses as reflected in the Buyer shall be deemed to have accepted the Estimated Closing Statement Net Working Capital Statement. If the Seller does not give the Buyer notice of objections within one (1) calendar day following receipt of the Buyer's Adjustments, the Seller shall be used deemed to have accepted the Buyer's Adjustments for purposes of calculating determining the purchase price adjustment Estimated Net Working Capital Statement. If the Seller gives the Buyer notice of objections to the Buyer's Adjustments, and if the Buyer and the Seller are unable, within one (1) calendar day after receipt by the Buyer of the notice by the Seller of objections to resolve the disputed exceptions, the Estimated Net Working Capital shall be deemed equal to the average of the Seller's and the Buyer's good faith determination thereof. If the Estimated Net Working Capital is less than Zero Dollars ($0), the Purchase Price shall be decreased on a dollar for dollar basis by the Closing Dateamount of such deficiency (the "Estimated Deficiency"). If the Estimated Net Working Capital is greater than Zero Dollars ($0), the Purchase Price shall be increased on a dollar for dollar basis by the amount of such surplus (the "Estimated Surplus").

Closing Date Adjustment. The purpose of the purchase price adjustment set forth in this Section 2.3 is to measure any changes in the Cash and Cash Equivalents, Working Capital, Indebtedness Capital and Company Fees and Expenses of the Company and the Company Subsidiaries, and Transaction Expenses, in each case Subsidiaries from their the respective targets target and/or estimated amounts to the final amounts on the same accounting bases basis consistently applied to reflect transactions and/or events up to and conditions existing at the Closing Date. Not less than five two (52) days Business Days prior to the Closing Date, Seller shall deliver to Buyer a statement an estimated balance sheet for the Company and the Company Subsidiaries as of the Effective Time (the “Estimated Closing StatementBalance Sheet”), which shall set forth ) and a good faith estimate computation of (i) the Cash and Cash Equivalents of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Cash and Cash Equivalents”), (ii) the Indebtedness of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Indebtedness”), (iii) the Transaction Expenses (the “Estimated Transaction Expenses”), and (iv) the Working Capital of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Working Capital”) based upon such Estimated Closing Balance Sheet, as well as a listing (including amounts) of the Company Fees and Expenses which will remain unpaid at the Effective Time (the “Estimated Unpaid Company Fees and Expenses”). The Estimated Closing Statement Balance Sheet shall be prepared in a manner consistent with (Ai) the definitions of Cash and Cash Equivalents, Indebtedness, Transaction Expenses, Equivalents and Working Capital set forth herein herein, and (Bii) the methodologies, practices and assumptions used in preparing the Base Balance Sheet set forth on Schedule I, as applicable and (iii) GAAP (provided, that in the event of any conflict between GAAP and the methodologies, practices and assumptions used in preparing the Base Balance Sheet, the methodologies, practices and assumptions set forth in the Working Capital Scheduleon Schedule I shall govern and control). Prior to the Closing, Seller shall (x) provide Buyer and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the (1) Books and Records and (2) senior employees and accountants of the Company and the Company Subsidiaries (as reasonably requested by Buyer) and (y) cooperate with Buyer in seeking to obtain work papers from SellerThe Estimated Closing Balance Sheet, the Company and the Company Subsidiaries pertaining to or used in connection with the preparation computations of the Estimated Closing Statement and provide Buyer with copies thereof (as reasonably requested by Buyer). Seller and Buyer in good faith shall seek to resolve any differences that they may have with respect to the computation of any of the items in the Estimated Closing Statement; provided that if the parties are unable to resolve all such differences prior to the Closing, the amounts of the Estimated Closing Working Capital, Estimated Closing Indebtedness, Estimated Closing Cash and Cash Equivalents and Estimated Transaction Expenses as reflected in Closing Working Capital based upon such Estimated Closing Balance Sheet, and the Estimated Closing Statement Unpaid Company Fees and Expenses shall be used conclusive for purposes of calculating the purchase price calculation of the Net Purchase Price payable at the Closing, but shall be subject to adjustment on after the Closing Datepursuant to this Section 2.3.

Closing Date Adjustment. The purpose of the purchase price adjustment set forth in this Section 2.3 is to measure any changes in the Cash and Cash Equivalents, Working Capital, Indebtedness of the Company and the Company Subsidiaries, and Transaction Expenses, in each case from their respective targets and/or estimated amounts to the final amounts on the same accounting bases consistently applied to reflect transactions and/or events up to and conditions existing at the Closing Date. Not less than five At least two (52) days Business Days prior to the Closing Date, DEI and Seller shall deliver to Buyer a statement (the “Estimated Closing Statement”), which shall set forth a good faith estimate of (i) the Cash Closing Acquired Stores Schedule, the Closing Disney Retained Stores Schedule and Cash Equivalents the Deferred Stores Schedule; (ii) the estimated unaudited balance sheet of the Company and the Company Subsidiaries on a combined basis as of the Closing (Date, prepared by the “Estimated Closing Cash Company, DEI and Cash Equivalents”)Seller in good faith, (ii) the Indebtedness of the Company and the Company Subsidiaries giving effect as of the Closing Date to the Pre-Closing Transactions (the “Estimated "Closing Indebtedness”Balance Sheet"), ; and (iii) a letter setting forth and certifying the Transaction Expenses (Company's, DEI's and Seller's good faith calculation, based on the “Estimated Transaction Expenses”)Closing Balance Sheet, and (iv) the Working Capital of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Working Capital”)Capital and the Estimated Closing Working Capital Adjustment Amount. The Estimated Closing Statement Balance Sheet shall be prepared in a manner and form consistent with the Pro Forma Balance Sheet (including the application of Modified GAAP), except for adjustments made to reflect the absence of the Non-Transferable Stores, Expired Lease Stores and the Deferred Stores in accordance with the Store Adjustment Methodology, and the Estimated Closing Working Capital and the Estimated Closing Working Capital Adjustment Amount shall be calculated in a manner and form consistent with the June 2004 Working Capital Statement. Upon the Closing Date (and, if Buyer makes the election provided for in Section 3.3.1, on or prior to the Working Capital Deferred Delivery Date with respect to the Deferred Item Amount only), the Estimated Closing Working Capital Adjustment Amount shall be paid in accordance with Section 3.2 or 3.3, as applicable; provided, that if the Estimated Closing Working Capital Adjustment Amount is zero, there shall be no such payment made pursuant to this Section 2.3.1. If the Estimated Closing Working Capital Adjustment Amount is positive, (A) the definitions "Initial Canada Purchase Price" shall be (x) the Estimated Closing Working Capital Adjustment Amount multiplied by (y) a fraction, the numerator of Cash and Cash Equivalents, Indebtedness, Transaction Expenseswhich is the number of Acquired Stores set forth on the Closing Acquired Stores Schedule that were operated by TDS Canada prior to the Closing, and Working Capital the denominator of which is the total number of Acquired Stores set forth herein on the Closing Acquired Stores Schedule, and (B) the methodologies, practices and assumptions set forth in "Initial USA Purchase Price" shall be the Working Capital ScheduleInitial Purchase Price minus the Initial Canada Purchase Price. Prior to the Closing, Seller shall (x) provide Buyer and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the (1) Books and Records and (2) senior employees and accountants of the Company and the Company Subsidiaries (as reasonably requested by Buyer) and (y) cooperate with Buyer in seeking to obtain work papers from Seller, the Company and the Company Subsidiaries pertaining to or used in connection with the preparation of the Estimated Closing Statement and provide Buyer with copies thereof (as reasonably requested by Buyer). Seller and Buyer in good faith shall seek to resolve any differences that they may have with respect to the computation of any of the items in the Estimated Closing Statement; provided that if the parties are unable to resolve all such differences prior to the Closing, the amounts of If the Estimated Closing Working CapitalCapital Adjustment Amount is negative or zero, Estimated Closing Indebtedness, Estimated Closing Cash the "Initial Canada Purchase Price" and Cash Equivalents and Estimated Transaction Expenses as reflected in the Estimated Closing Statement "Initial USA Purchase Price" shall each be used for purposes of calculating the purchase price adjustment on the Closing Datezero.

Closing Date Adjustment. The purpose of the purchase price adjustment set forth in this Section 2.3 is to measure any changes in the Cash and Cash Equivalents, Working Capital, Indebtedness of the Company and the Company Subsidiaries, and Transaction Expenses, in each case from their respective targets and/or estimated amounts to the final amounts on the same accounting bases consistently applied to reflect transactions and/or events up to and conditions existing at the Closing Date. Not less than five (5) two business days prior to before the Closing Date, Seller shall deliver to Buyer a statement (the “Estimated Closing Statement”)Sellers shall, which shall set forth a in good faith estimate of (i) the Cash and Cash Equivalents of the Company in accordance with GAAP and the Company Subsidiaries as of the Closing (the “Estimated Closing Cash and Cash Equivalents”), (ii) the Indebtedness of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Indebtedness”), (iii) the Transaction Expenses (the “Estimated Transaction Expenses”), and (iv) the Working Capital of the Company and the Company Subsidiaries as of the Closing (the “Estimated Closing Working Capital”). The Estimated Closing Statement shall be prepared in a manner consistent with the Prior Balance Sheets, prepare an estimated balance sheet (Athe "Estimated Balance Sheet") the definitions of Cash and Cash Equivalents, Indebtedness, Transaction Expenses, and Working Capital set forth herein and (B) the methodologies, practices and assumptions set forth in the Working Capital Schedule. Prior to the Closing, Seller shall (x) provide Buyer and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the (1) Books and Records and (2) senior employees and accountants Sellers as of the Company and open of business on the Company Subsidiaries (as reasonably requested by Buyer) and (y) cooperate with Buyer in seeking to obtain work papers from Seller, the Company and the Company Subsidiaries pertaining to or used in Closing Date on a reasonable basis using Sellers then best available financial information. In connection with the preparation of the Estimated Balance Sheet on a mutually agreed upon date prior to the Closing Statement Date, Sellers and provide Buyer, including their respective representatives, shall observe a full physical count by Sellers of all inventory of Sellers. The Estimated Balance Sheet shall be prepared on a basis consistent with the Prior Balance Sheets, and shall, among other things, estimate Accounts Receivable, Inventory and Pre-Paid Expenses ("Estimated Accounts Receivable," "Estimated Inventory" and "Estimated Pre-Paid Expenses" respectively, and collectively, the "Closing Date Estimates"); provided, however, that if Buyer does not agree with copies thereof (as reasonably requested any or all of the Closing Date Estimates prepared by Buyer). Seller and Sellers, Buyer may, in its discretion, in good faith and in accordance with GAAP, estimate any or all of Accounts Receivable, Inventory and Pre- Paid Expenses of Sellers as of the open of business on the Closing Date, and in such event, for purposes of this section, the Closing Date Estimates shall seek be deemed to resolve any differences that they may have with respect be equal to the computation average of any of the items in the Estimated Closing Statement; provided that if the parties are unable to resolve all such differences prior to Sellers' and Buyer's good faith determination thereof. At the Closing, the amounts Purchase Price will be increased (if such amount is positive) or decreased (if such amount is negative), dollar-for-dollar, by the following amount (the "Closing Date Adjustment"): the sum of (a) the result of Estimated Accounts Receivable minus $22,565,000, multiplied by .90, (b) the result of Estimated Inventory minus $32,283,000, multiplied by .70 and (c) the result of Estimated Pre- Paid Expenses minus $1,053,000. In preparing the Estimated Closing Working CapitalBalance Sheet, Sellers shall exclude (i) any Accounts Receivable that are not owned, legally and beneficially, 100% by Sellers or by CIT, (ii) any Pre-Paid Expenses representing fees or other expenses arising in or related to the Chapter 11 Case, and (iii) the Excluded Assets, and Sellers shall include in Estimated Closing Indebtedness, Estimated Closing Cash and Cash Equivalents and Estimated Transaction Expenses as reflected in Inventory the Estimated Closing Statement shall be used for purposes of calculating the purchase price adjustment on the Closing DateUnsold Brooks Finished Inventory.