Closing Payment Adjustments. (a) Not less than five Business Days prior to the anticipated Closing Date, Seller shall provide Purchaser with a statement with a written estimate of each of (i) Working Capital, (ii) Indebtedness of the Company and (iii) the CapEx Shortfall Amount, in each case as of the Closing (the “Estimated Closing Statement”), which shall be accompanied by a notice that sets forth (A) Seller’s determination of the Closing Payment Adjustments and the Purchase Price after giving effect to the Closing Payment Adjustments and (B) the account or accounts to which Purchaser shall transfer the Purchase Price pursuant to Section 2.3. For the avoidance of doubt, the estimate of the Indebtedness of the Company as of the Closing set forth on the Estimated Closing Statement shall give effect to the repayment of Repayment Debt pursuant to Section 5.16, which repayment shall have been completed at or prior to the Closing.
(b) The Estimated Closing Statement shall be prepared in accordance with the Accounting Principles attached as Schedule I hereto (the “Accounting Principles”) and in accordance with GAAP, in each case, applied consistently with their application in connection with the preparation of the Company Financial Statements. It is understood and agreed that Annex A of Schedule I sets forth the calculation of the Target Working Capital (the “Target Working Capital Statement”).
(c) From and after the delivery of the Estimated Closing Statement until the day prior to the Closing Date, Seller shall, and shall cause the Company to, (i) reasonably assist Purchaser and its Representatives in Purchaser’s review of the Estimated Closing Statement and (ii) make available the Representatives responsible for preparing the Estimated Closing Statement to discuss the Estimated Closing Statement with Purchaser. Seller shall consider in good faith any comments on the Estimated Closing Statement submitted by Purchaser.
Closing Payment Adjustments. To the extent permitted by Law, any amounts payable under Sections 8.2 or 8.3 shall be treated by the Purchaser and the Seller as an adjustment to the Royalty Interests Purchase Price.
Closing Payment Adjustments. If the ET Working Capital is greater than the ET Working Capital Estimate, Purchaser shall pay the balance to Seller Subsidiary 1 no later than ten (10) Business Days after the ET Working Capital has become final and binding in accordance with Section 11.2. If the ET Working Capital Estimate is greater than the ET Working Capital, Seller Subsidiary 1 shall pay the balance to Purchaser no later than ten (10) Business Days after the ET Working Capital has become final and binding in accordance with Section 11.2. The allocation of the Variable Purchase Price pursuant to Annex 9.3 shall apply on a pro-rata basis also to the allocation of the Closing payment adjustment in this Section 9.9. * CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK *, HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Bird & Bird / METIS 28 /66 ASPA EXECUTION COPY Project London 11.12.2011
Closing Payment Adjustments. 13 2.6 Payments On or Before Closing........................................ 17 2.7
Closing Payment Adjustments. (a) Within thirty (30) days after the Closing Date, Seller Parent and Seller, at Seller's expense, will prepare, or cause to be prepared, and will deliver to Buyer, a combined balance sheet of the Companies as of the Closing Date (the "Closing Balance Sheet"). The Closing Balance Sheet shall be prepared on a combined basis in accordance with GAAP, applied on a basis consistent with the audited combined balance sheet of the Companies as at December 31, 2003 included in the Audited Financial Statements (the "Audited Balance Sheet"), and shall be attested, in accordance with GAAP, by Ernst & Young LLP ("E&Y"). For the avoidance of doubt, the Closing Balance Sheet and Final Closing Balance Sheet shall be prepared without taking into account the accounting and Tax effects or
Closing Payment Adjustments. (a) Prior to the date hereof, the Company has delivered to Purchaser a certificate executed by the principal financial officer of the Company (in his or her capacity as such) detailing the Company’s good faith best estimate (based on reasonable assumptions) of Company Net Working Capital, Closing Date Cash and Company Debt (“Company NWCC&D”), together with a projected consolidated balance sheet of the Company and its Subsidiaries as of immediately prior to the Closing prepared on a consistent basis with the Financial Statements (the “Company NWCC&D Certificate”). The Company NWCC&D Certificate shall be prepared by the Company in accordance with GAAP consistently applied by the Company and in accordance with Schedule 1.12. The Company NWCC&D Certificate shall be used to calculate the amount by which (i) Company Net Working Capital set forth therein is less than fourteen million four hundred forty nine thousand four hundred three U.S. Dollars ($14,449,403), (the “Working Capital Target,” and the amount of such deficiency, if any, being referred to herein as the “Working Capital Shortfall”), (ii) Company Net Working Capital set forth therein is greater than the Working Capital Target (the amount of such excess, if any, being referred to herein as the “Working Capital Excess”), (iii) Closing Date Cash set forth therein is less than eight million five hundred thousand U.S. Dollars ($8,500,000) (the “Minimum Cash Amount,” and the amount of such deficiency, if any, being referred to herein as the “Closing Date Cash Shortfall”), (iv) Closing Date Cash set forth therein is greater than the Minimum Cash Amount (the amount of such excess, if any, being referred to herein as the “Closing Date Cash Excess”), (v) Company Debt set forth therein is greater than fifty seven million U.S. Dollars ($57,000,000), (the “Company Debt Target,” and the amount of such excess, if any, being referred to herein as the “Company Debt Excess”) and (vi) Company Debt set forth therein is less than the Company Debt Target (the amount of such deficiency, if any, being referred to herein as the “Company Debt Shortfall”), which in each case shall be used to calculate the Adjusted Closing Payment pursuant to Section 0.
Closing Payment Adjustments. (a) Promptly upon the determination of the Final Closing Statement in accordance with Section 3.1 hereof, the following payments shall be made:
(i) if the Purchase Price is greater than the Closing Payment, the Purchaser shall pay to the Seller the amount by which the Purchase Price exceeds the Closing Payment; and
(ii) if the Purchase Price is less than the Closing Payment, the Seller shall pay to the Purchaser the amount by which the Closing Payment exceeds the Purchase Price.
Closing Payment Adjustments. The Closing Payment shall be adjusted as follows:
(a) The Closing Payment shall be adjusted upward by the following amounts (without duplication):
(i) all Property Expenses and other reasonable and customary costs and expenses paid by or on behalf of Seller to the extent attributable to periods of time on and after the Effective Time, which costs and expenses shall not include any Taxes (except Property Taxes included in the definition of Property Expenses) or Capital Expenses;
(ii) subject to Seller’s compliance with Section 5.1(b)(vi), any out-of-pocket expenses related to the acquisition of Real Property Interests for the Pipelines Under Construction and any capital expenses related to the construction of, or purchase of pipe relating to, the Pipelines Under Construction (collectively, “Capital Expenses”), in each case, incurred and paid by Seller from and after the Effective Time;
(iii) all prepaid expenses (other than any Taxes) attributable to the Assets that are paid by or on behalf of Seller and are attributable to the periods of time on and after the Effective Time, including prepaid utility charges; and
(iv) any other amount expressly provided for elsewhere in this Agreement or otherwise agreed upon in writing by Seller and Buyer as an upward adjustment to the Closing Payment.
(b) The Closing Payment shall be adjusted downward by the following amounts (without duplication):
(i) proceeds payable under the Gathering Agreement on and after the Effective Time up to the Closing as if such agreement was in effect during such period of time;
(ii) the amount of any Property Taxes attributable to periods of time prior to the Effective Time that are unpaid at the Closing; and
(iii) any other amount expressly provided for elsewhere in this Agreement or otherwise agreed upon in writing by Seller and Buyer as a downward adjustment to the Closing Payment.
Closing Payment Adjustments. (a) Within three (3) Business Days following the Closing Date, Seller shall deliver to Buyer a notice setting forth the calculation of the “Purchase Price”, which shall be Thirty-Seven Million Five Hundred Thousand U.S. Dollars (US$37,500,000), (i) increased by the aggregate amount in US dollars of all Contributions paid by Seller after the Measurement Date and prior to the Closing Date and (ii) decreased by the aggregate amount in US dollars of all Distributions received by Seller after the Measurement Date and prior to the Closing Date. Any disagreement as to the calculation of such Contributions paid and Distributions received after the Measurement Date shall be subject to verification by the Company.
(b) Within three (3) Business Days following delivery by Seller of the notice setting forth the calculation of the Purchase Price for the Closing required by Section 2.5(a), in the event (i) the Purchase Price is greater than the Closing Payment, Buyer shall pay to Seller an amount equal to such difference or (ii) the Closing Payment is greater than the Purchase Price, Seller shall pay to Buyer an amount equal to such difference.
(c) Seller shall, in establishing the Purchase Price, use its reasonable best efforts to obtain confirmation from the Company of the amounts of Distributions received and the Contributions paid. Notwithstanding the foregoing, the calculation of the Purchase Price shall be subject to adjustment following delivery by Seller of the notice setting forth the calculation of the Purchase Price, based upon information received after delivery of the notice, including, without limitation, confirmation from the Company of the amount of all Contributions paid and Distributions received.
Closing Payment Adjustments. At Closing, Newco shall deposit into an escrow account (the “Escrow Account”) with Liberty Bank (“Escrow Agent”) Twenty Million Dollars ($20,000,000) (the “Escrow Amount”) to secure the payment of any Shortfall in connection with the adjustment to the Facilities’ Specified Working Capital as set forth in Section 4.4(h) and the other obligations of the District hereunder, including, without limitation, the District’s obligations under Article 12 hereof, pursuant to the terms of an escrow agreement by and among Newco, LCMC, the District and the Escrow Agent substantially in the form of Exhibit H hereof (the “Escrow Agreement”) to be entered into by Newco, LCMC, the District and the Escrow Agent at the Closing. On the third (3rd) anniversary of the Closing Date (the “Responsibility Escrow Release Date”), the Escrow Agent shall deliver to the District all remaining amounts in the Escrow Account; provided, however, that on the Responsibility Escrow Release Date, Escrow Agent shall retain as part of the Escrow Account, to the extent available, an amount equal to the aggregate of all outstanding amounts asserted as claims hereunder in good faith in writing by LCMC, Newco or any other Claiming Person pursuant to Section 12.4 prior to the Responsibility Escrow Release Date and in such amounts as have been finally resolved pending payment, or which have not been finally resolved (“Retained Amounts”). Retained Amounts retained by Escrow Agent on the Responsibility Escrow Release Date pursuant to this Section 3.3(c) shall be paid by Escrow Agent in accordance with Article 12 on such later date(s) that all applicable claims duly made prior to the Responsibility Escrow Release Date have been finally resolved in accordance with Article 12, as applicable, with any balance remaining after resolution of all such claims to be delivered to the District.
