Common use of Closing Payment Adjustment Clause in Contracts

Closing Payment Adjustment. If any of the Closing Liability Amount, the Closing Cash Amount or the Seller Transaction Expenses (as finally determined pursuant to this Section 2.17 and as set forth in the Final Closing Statement) differs from the Estimated Closing Liability Amount, the Estimated Closing Cash Amount or the Estimated Seller Transaction Expenses, respectively, set forth in the Estimated Closing Statement, the following shall occur: (i) if the recalculated final Closing Payment equals or exceeds the Estimated Closing Payment (such excess, if any, the “Underpayment Amount”), then within two (2) Business Days of the date such recalculation is finally determined in accordance with this Section 2.16, (A) Buyer shall deliver or cause to be delivered to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, an amount equal to the Underpayment Amount, if any, for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages), and (B) Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds in the Adjustment Escrow Account for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages); or (ii) if the Estimated Closing Payment exceeds the recalculated final Closing Payment (such excess, if any, the “Overpayment Amount”), then within two (2) Business Days of the date such recalculation is finally determined in accordance with this Section 2.16, Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver (A) to Buyer by wire transfer of immediately available funds, an amount equal to the Overpayment Amount from the Adjustment Escrow Account, and (B) to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds remaining in the Adjustment Escrow Account following the disbursement to Buyer pursuant to clause (A) above for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages). In no event shall the Company Holders be responsible for any Overpayment Amount in excess of the funds then-remaining in the Adjustment Escrow Account, which funds shall be Buyer’s sole source of recovery to satisfy any Overpayment Amount.

Closing Payment Adjustment. If any The calculation of Closing Date Net Working Capital shall be deemed final ("FINAL CLOSING DATE NET WORKING CAPITAL") for the purposes of this Section 2.08 upon the earliest of (A) the failure of the Seller to notify the Purchaser of a dispute within 15 Business Days of the Purchaser's delivery of the Closing Liability AmountBalance Sheet to the Seller, (B) the Closing Cash Amount or the Seller Transaction Expenses (as finally determined resolution of all disputes, pursuant to this Section 2.17 2.08(b)(ii), by the Purchaser's Accountants and as set forth in the Seller's Accountant and (C) the resolution of all disputes, pursuant to Section 2.08(b)(ii), by the Independent Accounting Firm (such date being the "DETERMINATION DATE"). Within three Business Days of the calculation of Final Closing Statement) differs from the Estimated Date Net Working Capital being deemed final, a Closing Liability Amount, the Estimated Closing Cash Amount or the Estimated Seller Transaction Expenses, respectively, set forth in the Estimated Closing Statement, the following Payment adjustment shall occurbe made as follows: (i) if in the recalculated final event that the Final Closing Date Net Working Capital is greater than Estimated Net Working Capital and in excess of $2.9 million, then the Closing Payment equals or exceeds shall be adjusted upward in an amount equal to such difference; and (ii) in the event that the Final Closing Date Net Working Capital is less than Estimated Net Working Capital and less than $2.5 million, then the Closing Payment shall be adjusted downward in an amount equal to such difference. Upon the final determination of the amount of any cumulative adjustment to the Closing Payment pursuant to (such excess, if any, i) through (iv) above (the “Underpayment Amount”"POST-CLOSING ADJUSTMENT"), such Post-Closing Adjustment shall be paid as follows, in each case by wire transfer in immediately available funds: (A) in the event that a Post-Closing Adjustment is due to the Purchaser in an amount less than the Closing Payment Adjustment Amount, then the Purchaser shall retain the amount of the Post-Closing Adjustment from the Closing Payment Adjustment Amount and pay the balance of the Closing Payment Adjustment Amount to the Seller within two (2) three Business Days of the date such recalculation is finally determined in accordance with this Section 2.16, (A) Buyer shall deliver or cause to be delivered to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, an amount equal to the Underpayment Amount, if any, for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages), and (B) Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds in the Adjustment Escrow Account for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages)Determination Date; or (iiB) if in the Estimated event that a Post-Closing Adjustment is due to the Purchaser in an amount greater than the Closing Payment exceeds Adjustment Amount, then the recalculated final Purchaser shall retain the Closing Payment (such excessAdjustment Amount and the Seller, if any, the “Overpayment Amount”), then within two (2) three Business Days of the date such recalculation Determination Date, shall pay the amount of the Post-Closing Adjustment that is finally determined in accordance with this Section 2.16, Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver (A) to Buyer by wire transfer of immediately available funds, an amount equal to the Overpayment Amount from the Adjustment Escrow Account, and (B) to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds remaining in the Adjustment Escrow Account following the disbursement to Buyer pursuant to clause (A) above for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages). In no event shall the Company Holders be responsible for any Overpayment Amount in excess of the funds then-remaining Closing Payment Adjustment Amount to the Purchaser; or (C) in the event that a Post-Closing Adjustment Escrow Accountis due to the Seller, which funds then the Purchaser shall be Buyer’s sole source pay the sum of recovery the Closing Payment Adjustment Amount and the Post-Closing Adjustment to satisfy any Overpayment Amountthe Seller within three Business Days of the Determination Date.

Closing Payment Adjustment. If any The calculation of Closing Date Net Working Capital and Closing Date Net Debt shall be deemed final ("FINAL CLOSING DATE NET WORKING CAPITAL" and "FINAL CLOSING DATE NET DEBT," respectively) for the purposes of this Section 2.07 upon the earliest of (A) the failure of the Sellers to notify the Purchaser of a dispute within 15 Business Days of the Purchaser's delivery of the Closing Liability AmountBalance Sheet to the Sellers, (B) the Closing Cash Amount or the Seller Transaction Expenses (as finally determined resolution of all disputes, pursuant to this Section 2.17 2.07(b)(ii), by Purchaser's and as set forth in the Sellers' Accountants and (C) the resolution of all disputes, pursuant to Section 2.07(b)(ii), by the Independent Accounting Firm (such date being the "DETERMINATION DATE"). Within three Business Days of the calculation of Final Closing Statement) differs from the Estimated Date Net Working Capital and Final Closing Liability AmountDate Net Debt being deemed final, the Estimated a Closing Cash Amount or the Estimated Seller Transaction Expenses, respectively, set forth in the Estimated Closing Statement, the following Payment adjustment shall occurbe made as follows: (i) if in the recalculated final event that the Final Closing Date Net Debt is greater than Estimated Net Debt, then the Closing Payment equals or exceeds the Estimated Closing Payment (such excess, if any, the “Underpayment Amount”), then within two (2) Business Days of the date such recalculation is finally determined shall be adjusted downward in accordance with this Section 2.16, (A) Buyer shall deliver or cause to be delivered to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, an amount equal to the Underpayment Amount, if any, for further disbursement to difference between the Company Holders (pro rata in accordance with their respective Pro Rata Percentages), Final Closing Date Net Debt and (B) Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds in the Adjustment Escrow Account for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages); orEstimated Net Debt; (ii) if in the event that the Final Closing Date Net Debt is less than Estimated Net Debt, then the Closing Payment exceeds the recalculated final Closing Payment (such excess, if any, the “Overpayment Amount”), then within two (2) Business Days of the date such recalculation is finally determined shall be adjusted upward in accordance with this Section 2.16, Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver (A) to Buyer by wire transfer of immediately available funds, an amount equal to the Overpayment Amount difference between the Final Closing Date Net Debt and Estimated Net Debt; (iii) in the event that the Final Closing Date Net Working Capital is greater than Estimated Net Working Capital, then the Closing Payment shall be adjusted upward in an amount equal to such excess; and (iv) in the event that the Final Closing Date Net Working Capital is less than Estimated Net Working Capital, then the Closing Payment shall be adjusted downward in an amount equal to such deficiency. Upon the final determination of the amount of any cumulative adjustment to the Closing Payment pursuant to (i) through (iv) above (the "POST-CLOSING ADJUSTMENT"), such Post-Closing Adjustment, plus interest at the Interest Rate from July 1, 1999 to the date of payment, shall be paid as follows, in each case by wire transfer in immediately available funds: (A) in the event that a Post-Closing Adjustment is due to the Purchaser in an amount less than the Closing Payment Adjustment Amount, then the Purchaser shall retain the amount of the Post-Closing Adjustment from the Closing Payment Adjustment Escrow Account, Amount and pay the balance of the Closing Payment Adjustment Amount to the Sellers within three Business Days of the Determination Date; or (B) in the event that a Post-Closing Adjustment is due to the Transfer Agent Purchaser in an amount greater than the Closing Payment Adjustment Amount, then the Purchaser shall retain the Closing Payment Adjustment Amount and the Surviving LLC (for any compensatory payments) by wire transfer Sellers, within three Business Days of immediately available fundsthe Determination Date, any funds remaining in shall pay the amount of the Post-Closing Adjustment Escrow Account following the disbursement to Buyer pursuant to clause (A) above for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages). In no event shall the Company Holders be responsible for any Overpayment Amount that is in excess of the funds then-remaining Closing Payment Adjustment Amount to the Purchaser; or (C) in the event that a Post-Closing Adjustment Escrow Accountis due to the Sellers, which funds then the Purchaser shall be Buyer’s sole source pay the sum of recovery the Closing Payment Adjustment Amount and the Post-Closing Adjustment to satisfy any Overpayment Amountthe Sellers within three Business Days of the Determination Date.

Closing Payment Adjustment. If any of the Net Working Capital, the Closing Liability Debt Amount, the Closing Cash Amount Amount, the Capital Leases or the Seller Transaction Company Expenses (as finally determined pursuant to this Section 2.17 1.5 and as set forth in the Final Closing Balance Sheet and the Final Closing Statement) differs from the Estimated Closing Liability Amount, the Estimated Closing Cash Amount or the Estimated Seller Transaction Expenses, respectively, estimated amounts thereof set forth in the Estimated Closing Balance Sheet and the Estimated Closing Statement, the following Closing Payment shall occur: be recalculated using such final figures in lieu of such estimated figures, and (i) the amount, if the recalculated final Closing Payment equals or exceeds any, by which the Estimated Closing Payment paid at Closing in accordance with Sections 1.4(a) and (b) is less than such excessre-calculated Closing Payment shall be paid by Buyer in cash to the Member Representative for distribution to the Members pursuant to the terms of this Agreement, provided that Buyer shall be entitled at its option to make such payment in Parent Common Stock up to the amount by which the estimated Capital Leases exceed the final Capital Leases as finally determined under this Section 1.5, provided further that such Parent Common Stock shall be calculated at the Parent Share Value; and (ii) the amount, if any, the “Underpayment Amount”), then within two (2) Business Days of the date by which such recalculation is finally determined Estimated Closing Payment paid at Closing in accordance with this Section 2.16, (ASections 1.4(a) Buyer shall deliver or cause to be delivered to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, an amount equal to the Underpayment Amount, if any, for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages), and (Bb) Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver to the Transfer Agent and the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds in the Adjustment Escrow Account for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages); or (ii) if the Estimated Closing Payment exceeds the recalculated such re-calculated final Closing Payment (such excess, if any, the excess being “Overpayment Amount”) shall be paid to Buyer (x) directly from the Adjustment Escrow Amount, up to the amount of the Overpayment Amount equal to the aggregate Percentage Shares of all Members other than Management Holdco and (y) via offset by Buyer against any subsequent Post-Closing Management Holdco Payments (or via recovery from the Adjustment Escrow Amount to the extent that Management Holdco has contributed to the Adjustment Escrow Amount pursuant to Section 1.4(c)), then within two (2) Business Days of up to the date such recalculation is finally determined in accordance with this Section 2.16, Buyer and the Shareholders’ Representative shall jointly instruct the Escrow Agent to deliver (A) to Buyer by wire transfer of immediately available funds, an amount equal to the Management Holdco’s Percentage Share of the Overpayment Amount; provided, that any such Overpayment Amount shall be satisfied first from the Cash Adjustment Escrow Account, Amount and (B) the portion of the Post-Closing Management Holdco Payment allocable to the Transfer Agent and payment of the Surviving LLC (for any compensatory payments) by wire transfer of immediately available funds, any funds remaining in the Overpayment Amount until all such Cash Adjustment Escrow Account following the disbursement Amount has been released to Buyer pursuant to clause (A) above for further disbursement to the Company Holders (pro rata in accordance with their respective Pro Rata Percentages). In no event shall the Company Holders be responsible for any Overpayment Amount in excess and such portion of the funds thenPost-remaining in the Adjustment Escrow Account, which funds shall be Buyer’s sole source Closing Management Holdco Payment allocable to payment of recovery to satisfy any Overpayment Amount.the