Net Working Capital Purchase Price Adjustment. (a) At least five Business Days prior to the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Buyer a statement (the “Estimated Closing Date Statement”) of Seller’s good faith estimate of (w) Working Capital (the “Estimated Closing Date Working Capital”), (x) Store Cash (the “Estimated Closing Date Store Cash”) (y) Non-Cash Sales Settlement Amount (the “Estimated Non-Cash Sales Settlement Amount”) and (z) Asset Sales Proceeds (the “Estimated Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Estimated Closing Date Statement shall be prepared in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” (as applicable) set forth herein based on the Working Capital Standard. The “Trued-Up Amount” shall be equal to (i) the Initial Purchase Price, plus (ii) the excess, if any, of the Estimated Closing Date Working Capital over the Target Maximum Working Capital, less (ii) the excess, if any, of the Target Minimum Working Capital over the Estimated Closing Date Working Capital, less (iii) the excess, if any, of the Target Minimum Store Cash over the Estimated Closing Date Store Cash, plus (iv) the Non-Cash Sales Settlement Amount, if any, less (v) the Asset Sales Proceeds, if any. If the Trued-Up Amount is a positive amount, the Initial Purchase Price shall be increased or reduced, as applicable, to be equal to such Trued-Up Amount and, as so increased or reduced, shall be paid to the Seller pursuant to Section 1.1. If the Trued-Up Amount is a negative amount, the Initial Purchase Price shall be reduced to zero and Seller shall contribute to the Company on the Closing Date, in cash, the absolute amount by which the Trued-Up Amount is less than zero (the “Closing Date Capital Contribution”). The Initial Purchase Price as increased or decreased (but not below zero) to the Trued-Up Amount shall be the “Closing Date Cash Consideration” that is payable by the Buyer hereunder. (b) Within 60 calendar days following the Closing Date, Buyer shall prepare, or cause to be prepared, and deliver to Seller a statement (as such may be adjusted following resolution of disputes in accordance with Section 2.1(d), the “Closing Date Statement”) of Working Capital (the “Closing Date Working Capital”), Store Cash (the “Closing Date Store Cash”), Non-Cash Sales Settlement Amount (the “Closing Date Non-Cash Sales Settlement Amount”) and Asset Sales Proceeds (“Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Closing Date Statement shall be prepared in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” and “Asset Sales Proceeds” (as applicable) set forth herein, and (in the case of Working Capital, Store Cash and Non-Cash Sales Settlement Amount) on the basis of the Working Capital Standard. (c) After receipt of the Closing Date Statement, Seller shall have 45 calendar days to review the Closing Date Statement, together with the work-papers used in the preparation thereof. Seller and its authorized representatives shall have reasonable access to all relevant personnel, books and records of Buyer, the Company and the Company’s Subsidiaries to the extent reasonably required to complete their review of the Closing Date Statement. Unless Seller delivers written notice to Buyer on or prior to the 45th calendar day after Seller’s receipt of the Closing Date Statement, Seller shall be deemed to have accepted and agreed to the calculation of Closing Date Working Capital, Closing Date Store Cash Closing Date Non-Cash Sales Settlement Amount and Closing Date Asset Sales Proceeds. Seller shall set forth in such notice reasonable detail for the basis of Seller’s objection or objections and the adjustments to the amount of Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds that Seller believes should be made. If Seller so notifies Buyer of its objection to the calculation of Closing Date Working Capital, Buyer and Seller shall, within 30 calendar days following such notice (the “Resolution Period”), attempt to resolve their differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive. (d) If, at the conclusion of the Resolution Period, any amounts remain in dispute with respect to the Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds, then all amounts remaining in dispute shall be submitted to Xxxxx Xxxxxxxx LLP (the “Neutral Auditor”). Each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter, including customary indemnities in favor of the Neutral Auditor. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditor shall be borne pro rata as between Seller, on the one hand, and Buyer, on the other hand, in proportion to the allocation of the dollar value of the amounts remaining in dispute between Seller and Buyer made by the Neutral Auditor such that the prevailing party pays the lesser proportion of the fees and expenses. The Neutral Auditor shall act as an expert to determine, based solely on the provisions of this Section 2.1(d) and the presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and only as to whether such amounts were arrived at in conformity with Section 2.1(a) hereof or contain arithmetic error. The Neutral Auditor’s determination shall be made within 30 calendar days of the submission of the amounts remaining in dispute by the parties to the Neutral Auditor, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The terms “Final Closing Date Working Capital”, “Final Closing Date Store Cash”, “Final Closing Date Non-Cash Sales Settlement Amount” and “Final Closing Date Asset Sales Proceeds”) shall mean, respectively, the definitive Closing Date Working Capital, the definitive Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds agreed to (or deemed to be agreed to) by Buyer and Seller in accordance with the terms of Section 2.1(c) or, if applicable, the definitive Closing Date Working Capital, Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds resulting from the determinations made by the Neutral Auditor in accordance with this Section 2.1(d) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Net Working Capital Purchase Price Adjustment. (a) At least five Business Days prior to Within 30 days after the Closing Date, Seller TTII shall prepare, or cause to be prepared, prepare and deliver to Buyer Lydall a statement (the “Estimated "Closing Date Statement”") of Seller’s good faith estimate of (w) setting forth TTII's Net Working Capital (the “Estimated Closing Date Working Capital”as defined in Section 5.05(d)(iii), (x) Store Cash (the “Estimated Closing Date Store Cash”) (y) Non-Cash Sales Settlement Amount (the “Estimated Non-Cash Sales Settlement Amount”) and (z) Asset Sales Proceeds (the “Estimated Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Estimated ("Closing Date Statement shall be prepared in accordance with the definitions of “Net Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” (as applicable) set forth herein based on the Working Capital Standard. The “Trued-Up Amount” shall be equal to (i) the Initial Purchase Price, plus (ii) the excess, if any, of the Estimated Closing Date Working Capital over the Target Maximum Working Capital, less (ii) the excess, if any, of the Target Minimum Working Capital over the Estimated Closing Date Working Capital, less (iii) the excess, if any, of the Target Minimum Store Cash over the Estimated Closing Date Store Cash, plus (iv) the Non-Cash Sales Settlement Amount, if any, less (v) the Asset Sales Proceeds, if any. If the Trued-Up Amount is a positive amount, the Initial Purchase Price shall be increased or reduced, as applicable, to be equal to such Trued-Up Amount and, as so increased or reduced, shall be paid to the Seller pursuant to Section 1.1. If the Trued-Up Amount is a negative amount, the Initial Purchase Price shall be reduced to zero and Seller shall contribute to the Company on the Closing Date, in cash, the absolute amount by which the Trued-Up Amount is less than zero (the “Closing Date Capital Contribution”"). The Initial Purchase Price as increased or decreased (but not below zero) to the Trued-Up Amount shall be the “Closing Date Cash Consideration” that is payable by the Buyer hereunder.
(b) Within 60 calendar days following the Closing Date, Buyer shall prepare, or cause to be prepared, and deliver to Seller a statement (as such may be adjusted following resolution of disputes in accordance with Section 2.1(d), the “Closing Date Statement”) of Working Capital (the “Closing Date Working Capital”), Store Cash (the “Closing Date Store Cash”), Non-Cash Sales Settlement Amount (the “Closing Date Non-Cash Sales Settlement Amount”) and Asset Sales Proceeds (“Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Closing Date Statement shall be prepared in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” and “Asset Sales Proceeds” (as applicable) also set forth herein, and (in the case of Working Capital, Store Cash and Non-Cash Sales Settlement Amount) on the basis a calculation of the amount by which Closing Date Net Working Capital Standard.
exceeds or is less than $1,599,657 (c) After "Working Capital Adjustment"). Within 15 days after receipt of the Closing Date Statement, Seller Lydall shall have 45 calendar days to review complete its examination of the Closing Date StatementStatement and shall deliver to TTII either a written acknowledgment of Lydall accepting the Closing Date Statement and the Working Capital Adjustment or a written report ("Adjustment Report") setting forth in detail any proposed adjustments to the Closing Date Statement and the Working Capital Adjustment and the reasons and supporting data therefor. In the event that Lydall fails to deliver such acknowledgment or Adjustment Report within such fifteen (15) day period, together with the work-papers used Closing Date Statement (and each of the Closing Date Net Working Capital and the Working Capital Adjustment set forth thereon) delivered by TTII to Lydall shall be deemed to be correct and to have been finally determined under Section 5.05 (c) below;
(b) If Lydall shall deliver an Adjustment Report to TTII within the period set forth in Section 5.05(a), Lydall and TTII shall attempt to resolve any differences and agree upon the Working Capital Adjustment. In the event that TTII and Lydall fail to agree on any or all of Lydall's proposed adjustments to the Closing Date Statement contained in the preparation thereofAdjustment Report within 15 days after TTII receives the Adjustment Report, then BDO Xxxxxxx ("Xxxxxxx") shall, or if Xxxxxxx shall be unavailable, the parties shall select an independent certified public accounting firm of national reputation (who shall not be a firm previously or currently retained by Lydall or TTII) which is mutually agreeable to the parties (Xxxxxxx, or such other firm, the "(Independent Auditors") to, resolve any dispute. Seller The Independent Auditors, acting as independent auditors and not for the benefit of Lydall or TTII, shall make the final determination with respect to the correctness of the adjustments in Closing Date Net Working Capital proposed by Lydall in the Adjustment Report in light of the terms and provisions of this Agreement. The decision of the Independent Auditors shall be in writing and state the basis for the finding and shall be final and binding on Lydall and TTII. The costs and expenses of the Independent Auditors for their services rendered pursuant hereto shall be borne equally by Lydall and TTII.
(c) The term "Final Closing Date Statement" shall mean the Closing Date Statement delivered pursuant to Section 5.05(a), as adjusted, if at all, pursuant to Section 5.05(a) or 5.05(b) and the "Settlement Date" shall mean the date on which the Final Closing Date Statement is agreed to by the parties or finally determined by the Independent Auditors, as the case may be. Until the Settlement Date, Lydall agrees to provide TTII, its authorized representatives shall have and advisors, and the Independent Auditors with access, during Lydall's normal business hours and upon reasonable access advance notice, to all relevant personnel, the books and records of Buyer, TTII for the Company and the Company’s Subsidiaries to the extent reasonably required to complete their review purpose of preparing the Closing Date Statement. Unless Seller delivers written notice to Buyer on or prior to the 45th calendar day after Seller’s receipt of the Closing Date Statement, Seller shall be deemed to have accepted Statement and agreed to the calculation of Closing Date Working Capital, Closing Date Store Cash Closing Date Non-Cash Sales Settlement Amount and Closing Date Asset Sales Proceeds. Seller shall reviewing any proposed adjustments set forth in such notice reasonable detail for the basis of Seller’s objection or objections and the adjustments to the amount of Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds that Seller believes should be made. If Seller so notifies Buyer of its objection to the calculation of Closing Date Working Capital, Buyer and Seller shall, within 30 calendar days following such notice (the “Resolution Period”), attempt to resolve their differences and any resolution by them as to any disputed amounts shall be final, binding and conclusiveAdjustment Report.
(d) If, at the conclusion of the Resolution Period, any amounts remain in dispute with respect to the Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds, then all amounts remaining in dispute shall be submitted to Xxxxx Xxxxxxxx LLP (the “Neutral Auditor”). Each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter, including customary indemnities in favor of the Neutral Auditor. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditor shall be borne pro rata as between Seller, on the one hand, and Buyer, on the other hand, in proportion to the allocation of the dollar value of the amounts remaining in dispute between Seller and Buyer made by the Neutral Auditor such that the prevailing party pays the lesser proportion of the fees and expenses. The Neutral Auditor shall act as an expert to determine, based solely on the provisions of this Section 2.1(d) and the presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and only as to whether such amounts were arrived at in conformity with Section 2.1(a) hereof or contain arithmetic error. The Neutral Auditor’s determination shall be made within 30 calendar days of the submission of the amounts remaining in dispute by the parties to the Neutral Auditor, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The terms “Final Closing Date Working Capital”, “Final Closing Date Store Cash”, “Final Closing Date Non-Cash Sales Settlement Amount” and “Final Closing Date Asset Sales Proceeds”) shall mean, respectively, the definitive Closing Date Working Capital, the definitive Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds agreed to (or deemed to be agreed to) by Buyer and Seller in accordance with the terms of Section 2.1(c) or, if applicable, the definitive Closing Date Working Capital, Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds resulting from the determinations made by the Neutral Auditor in accordance with this Section 2.1(d) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Net Working Capital Purchase Price Adjustment. (a) At least five Business Days prior to Within 30 days after the Closing Date, Seller ETSI shall prepare, or cause to be prepared, prepare and deliver to Buyer Lydall a statement (the “Estimated "Closing Date Statement”") of Seller’s good faith estimate of (w) setting forth ETSI's Net Working Capital (the “Estimated Closing Date Working Capital”as defined in Section 4.05(d)(iii), (x) Store Cash (the “Estimated Closing Date Store Cash”) (y) Non-Cash Sales Settlement Amount (the “Estimated Non-Cash Sales Settlement Amount”) and (z) Asset Sales Proceeds (the “Estimated Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Estimated ("Closing Date Statement shall be prepared in accordance with the definitions of “Net Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” (as applicable) set forth herein based on the Working Capital Standard. The “Trued-Up Amount” shall be equal to (i) the Initial Purchase Price, plus (ii) the excess, if any, of the Estimated Closing Date Working Capital over the Target Maximum Working Capital, less (ii) the excess, if any, of the Target Minimum Working Capital over the Estimated Closing Date Working Capital, less (iii) the excess, if any, of the Target Minimum Store Cash over the Estimated Closing Date Store Cash, plus (iv) the Non-Cash Sales Settlement Amount, if any, less (v) the Asset Sales Proceeds, if any. If the Trued-Up Amount is a positive amount, the Initial Purchase Price shall be increased or reduced, as applicable, to be equal to such Trued-Up Amount and, as so increased or reduced, shall be paid to the Seller pursuant to Section 1.1. If the Trued-Up Amount is a negative amount, the Initial Purchase Price shall be reduced to zero and Seller shall contribute to the Company on the Closing Date, in cash, the absolute amount by which the Trued-Up Amount is less than zero (the “Closing Date Capital Contribution”"). The Initial Purchase Price as increased or decreased (but not below zero) to the Trued-Up Amount shall be the “Closing Date Cash Consideration” that is payable by the Buyer hereunder.
(b) Within 60 calendar days following the Closing Date, Buyer shall prepare, or cause to be prepared, and deliver to Seller a statement (as such may be adjusted following resolution of disputes in accordance with Section 2.1(d), the “Closing Date Statement”) of Working Capital (the “Closing Date Working Capital”), Store Cash (the “Closing Date Store Cash”), Non-Cash Sales Settlement Amount (the “Closing Date Non-Cash Sales Settlement Amount”) and Asset Sales Proceeds (“Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Closing Date Statement shall be prepared in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” and “Asset Sales Proceeds” (as applicable) also set forth hereina calculation of the amount by which Closing Date Net Working Capital exceeds or is less than $1,700,000 ("Working Capital Adjustment"). Within 60 days after the Closing Date, Lydall shall complete its examination of the Closing Date Statement and (in shall deliver to ETSI either a written acknowledgment of Lydall accepting the case of Working Capital, Store Cash Closing Date Statement and Non-Cash Sales Settlement Amount) on the basis of the Working Capital Standard.Adjustment or a written report ("Adjustment Report") setting forth in detail any proposed adjustments to the Closing Date Statement and the Working Capital Adjustment and the reasons and supporting data therefor. In the event that Lydall fails to deliver such acknowledgment or Adjustment Report within such sixty (60) day period, the Closing Date Statement (and each of the Closing Date Net Working Capital and the Working Capital Adjustment set forth thereon) delivered by ETSI to Lydall shall be deemed to be correct and to have been finally determined under Section 4.05 (b) below;
(b) If Lydall shall deliver an Adjustment Report to ETSI within the period set forth in Section 4.05(a), Lydall and ETSI shall attempt to resolve any differences and agree upon the Working Capital Adjustment. In the event that ETSI and Lydall fail to agree on any or all of Lydall's proposed adjustments to the Closing Date Statement contained in the Adjustment Report within 15 days after ETSI receives the Adjustment Report, then the parties shall select an independent certified public accounting firm of national reputation (who shall not be a firm previously or currently retained by Lydall or ETSI) which is mutually agreeable to the parties ( the "Independent Auditors") to, resolve any dispute. The Independent Auditors, acting as independent auditors and not for the benefit of Lydall or ETSI, shall make the final determination with respect to the calculation of the Closing Date Net Working Capital in light of the terms and provisions of this Agreement within a period of less than 30 days. The decision of the Independent Auditors shall be in writing and state the basis for the finding and shall be final and binding on Lydall and ETSI. The costs and expenses of the Independent Auditors for their services rendered pursuant hereto shall be borne equally by Lydall and ETSI;
(c) After receipt of The term "Final Closing Date Statement" shall mean the Closing Date StatementStatement delivered pursuant to Section 4.05(a), Seller as adjusted, if at all, pursuant to Section 4.05(a) or 4.05(b) and the "Settlement Date" shall have 45 calendar days to review mean the date on which the Final Closing Date StatementStatement is agreed to by the parties or finally determined by the Independent Auditors, together as the case may be. Until the Settlement Date, Lydall agrees to provide ETSI, its representatives and advisors, and the Independent Auditors with access, during Lydall's normal business hours and upon reasonable advance notice, to the work-papers used in the preparation thereof. Seller and its authorized representatives shall have reasonable access to all relevant personnel, books and records of Buyer, the Company and Operation for the Company’s Subsidiaries to the extent reasonably required to complete their review purpose of preparing the Closing Date Statement. Unless Seller delivers written notice to Buyer on or prior to the 45th calendar day after Seller’s receipt of the Closing Date Statement, Seller shall be deemed to have accepted Statement and agreed to the calculation of Closing Date Working Capital, Closing Date Store Cash Closing Date Non-Cash Sales Settlement Amount and Closing Date Asset Sales Proceeds. Seller shall reviewing any proposed adjustments set forth in such notice reasonable detail for the basis of Seller’s objection or objections and the adjustments to the amount of Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds that Seller believes should be made. If Seller so notifies Buyer of its objection to the calculation of Closing Date Working Capital, Buyer and Seller shall, within 30 calendar days following such notice (the “Resolution Period”), attempt to resolve their differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive.
(d) If, at the conclusion of the Resolution Period, any amounts remain in dispute with respect to the Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds, then all amounts remaining in dispute shall be submitted to Xxxxx Xxxxxxxx LLP (the “Neutral Auditor”). Each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter, including customary indemnities in favor of the Neutral Auditor. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditor shall be borne pro rata as between Seller, on the one hand, and Buyer, on the other hand, in proportion to the allocation of the dollar value of the amounts remaining in dispute between Seller and Buyer made by the Neutral Auditor such that the prevailing party pays the lesser proportion of the fees and expenses. The Neutral Auditor shall act as an expert to determine, based solely on the provisions of this Section 2.1(d) and the presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and only as to whether such amounts were arrived at in conformity with Section 2.1(a) hereof or contain arithmetic error. The Neutral Auditor’s determination shall be made within 30 calendar days of the submission of the amounts remaining in dispute by the parties to the Neutral Auditor, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The terms “Final Closing Date Working Capital”, “Final Closing Date Store Cash”, “Final Closing Date Non-Cash Sales Settlement Amount” and “Final Closing Date Asset Sales Proceeds”) shall mean, respectively, the definitive Closing Date Working Capital, the definitive Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds agreed to (or deemed to be agreed to) by Buyer and Seller in accordance with the terms of Section 2.1(c) or, if applicable, the definitive Closing Date Working Capital, Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds resulting from the determinations made by the Neutral Auditor in accordance with this Section 2.1(d) (in addition to those items theretofore agreed to by Seller and Buyer).Adjustment Report;
Appears in 1 contract
Net Working Capital Purchase Price Adjustment. (ai) At least five Business Days prior Prior to the Closing Date, Seller shall prepare, or cause prepared and delivered to be prepared, and deliver to Buyer the Purchaser a statement (the “Estimated Closing Date StatementPreliminary Net Working Capital Certificate”) of Seller’s good faith setting forth in reasonable detail its estimate of (w) Net Working Capital (the “Estimated Closing Date Preliminary Net Working Capital”), (x) Store Cash (the “Estimated Closing Date Store Cash”) (y) Non-Cash Sales Settlement Amount (the “Estimated Non-Cash Sales Settlement Amount”) and (z) Asset Sales Proceeds (the “Estimated Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereofthe calculations supporting Seller’s estimate. The Estimated Closing Date Statement Preliminary Net Working Capital shall be prepared in accordance calculated on a basis consistent with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” (as applicable) set forth herein based on the Working Capital Standard. The “Trued-Up Amount” shall be equal to (i) the Initial Purchase Price, plus GAAP.
(ii) the excess, if any, of the Estimated Closing Date Working Capital over the Target Maximum Working Capital, less Within one hundred fifty (ii150) the excess, if any, of the Target Minimum Working Capital over the Estimated Closing Date Working Capital, less (iii) the excess, if any, of the Target Minimum Store Cash over the Estimated Closing Date Store Cash, plus (iv) the Non-Cash Sales Settlement Amount, if any, less (v) the Asset Sales Proceeds, if any. If the Trued-Up Amount is a positive amount, the Initial Purchase Price shall be increased or reduced, as applicable, to be equal to such Trued-Up Amount and, as so increased or reduced, shall be paid to the Seller pursuant to Section 1.1. If the Trued-Up Amount is a negative amount, the Initial Purchase Price shall be reduced to zero and Seller shall contribute to the Company on the Closing Date, in cash, the absolute amount by which the Trued-Up Amount is less than zero (the “Closing Date Capital Contribution”). The Initial Purchase Price as increased or decreased (but not below zero) to the Trued-Up Amount shall be the “Closing Date Cash Consideration” that is payable by the Buyer hereunder.
(b) Within 60 calendar days following the Closing Date, Buyer the Purchaser shall prepare, or cause to be prepared, prepare and deliver to Seller a statement (as such may be adjusted following resolution of disputes in accordance with Section 2.1(d), the “Closing Date Statement”) setting forth in reasonable detail its calculation of Net Working Capital (the “Closing Date Working Capital”), Store Cash (the “Closing Date Store Cash”), Non-Cash Sales Settlement Amount (the “Closing Date Non-Cash Sales Settlement Amount”) and Asset Sales Proceeds (“Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Closing Date Statement shall be prepared in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” and “Asset Sales Proceeds” (as applicable) set forth hereinDate, and calculated on a basis consistent with GAAP. If within thirty (in the case of Working Capital, Store Cash and Non-Cash Sales Settlement Amount30) on the basis of the Working Capital Standard.
(c) After receipt of the Closing Date Statement, Seller shall have 45 calendar days to review the Closing Date Statement, together with the work-papers used in the preparation thereof. Seller and its authorized representatives shall have reasonable access to all relevant personnel, books and records of Buyer, the Company and the Company’s Subsidiaries to the extent reasonably required to complete their review of the Closing Date Statement. Unless Seller delivers written notice to Buyer on or prior to the 45th calendar day after Seller’s receipt of the Closing Date StatementStatement (the “Objection Period”), Seller the Purchaser has not received an Objection Notice, then such Net Working Capital set forth on the Closing Statement shall be deemed to have accepted the Final Net Working Capital and agreed to the Net Reduction Amount shall be adjusted (if at all) in accordance with Section 1.5(c)(vii); however, if an Objection Notice has been delivered, then Section 1.5(c)(iii) and Section 1.5(c)(iv) hereof shall apply.
(iii) If Seller in good faith disagrees with any portion of the Purchaser’s calculation of Closing Date Net Working Capital, Closing Date Store Cash Closing Date Non-Cash Sales Settlement Amount and Closing Date Asset Sales Proceeds. Seller shall Capital as set forth in such the Closing Statement, then Seller may, within the Objection Period, deliver a written notice reasonable detail for to the basis of Purchaser setting forth Seller’s objection or objections thereto (the “Objection Notice”). Any Objection Notice shall specify in detail any good faith and the adjustments reasonable disagreement as to the amount of Closing Date the Net Working Capital and Seller’s calculation of Net Working Capital.
(iv) If an Objection Notice is timely received by the Purchaser within the Objection Period, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds that Seller believes should be made. If Seller so notifies Buyer of its objection to the calculation of Closing Date Working Capital, Buyer Purchaser and Seller shall, within 30 calendar during the thirty (30) days following the Purchaser’s receipt of such notice Objection Notice (the “Resolution PeriodNet Working Capital Settlement Deadline”), attempt use their good faith, reasonable efforts to resolve their differences and any resolution by them reach an agreement on the disputed items. If such an agreement is reached prior to the Net Working Capital Settlement Deadline, then the Net Working Capital as to any disputed amounts so agreed shall be finalthe Final Net Working Capital and the Net Reduction Amount shall be adjusted, binding if at all, in accordance with the provisions of Section 1.5(c)(vii). If the Purchaser and conclusive.
(d) If, at the conclusion of the Resolution Period, any amounts remain in dispute with respect Seller are unable to reach such an agreement prior to the Closing Date Net Working CapitalCapital Settlement Deadline, Closing Date Store Cashthe Purchaser and Seller shall jointly retain EY located at Chase Tower, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds100 Xxxxxxxx Xxxxxx, then all amounts remaining in dispute shall be submitted to Xxxxx Xxxxxxxx LLP 0000, Xxxxxxxxxxxx, Xxxxxxx 00000 (the “Neutral AuditorAccountant”)) within thirty (30) days following the Net Working Capital Settlement Deadline to resolve any remaining disagreements. Each party agrees to The Purchaser and Seller shall execute, if requested by the Neutral AuditorAccountant, a reasonable engagement letter, including customary indemnities indemnification provisions in favor of the Neutral AuditorAccountant. All fees The Purchaser and expenses relating Seller shall direct the Accountant to render a determination in writing as promptly as practicable (and in any event within thirty (30) Business Days after its retention) and the workPurchaser and Seller shall cooperate with the Accountant during the engagement and make available the records and workpapers necessary for its review. The Accountant shall consider only those items and amounts set forth in the Objection Notice that the Purchaser and Seller have been unable to resolve, and the Accountant shall review only the records and workpapers submitted and base its determination solely on such submissions and the related computational materials. In resolving any disputed item, the Accountant may not assign a value to any item greater than the greatest value of such item claimed by the Purchaser or Seller or less than the smallest value for such item claimed by the Purchaser or Seller. The Accountant’s determination shall be based on the definitions included herein and shall otherwise be made in accordance with this Agreement. The determination of the Accountant shall be conclusive and binding upon the parties hereto, and the Net Reduction Amount shall be adjusted, if any, to be performed by the Neutral Auditor shall be borne pro rata as between Seller, on the one hand, and Buyer, on the other handat all, in proportion to accordance with the allocation provisions of the dollar value of the amounts remaining in dispute between Section 1.5(c)(vii). The Purchaser and Seller and Buyer made by the Neutral Auditor such that the prevailing party pays the lesser proportion shall each bear fifty percent (50%) of the fees and expensesexpenses of the Accountant. The Neutral Auditor Purchaser and Seller shall act as an expert to determine, based solely on the provisions each bear one hundred percent (100%) of this Section 2.1(d) and the presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and only as to whether such amounts were arrived at in conformity with Section 2.1(a) hereof or contain arithmetic error. The Neutral Auditor’s determination shall be made within 30 calendar days of the submission of the amounts remaining in dispute by the parties their own related expenses other than expenses related to the Neutral Auditor, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding and conclusive. Accountant.
(v) The terms “Final Closing Date Net Working Capital”, “Final Closing Date Store Cash”, “Final Closing Date Non-Cash Sales Settlement Amount” and “Final Closing Date Asset Sales Proceeds”) shall mean, respectively, the definitive Closing Date Working Capital, the definitive Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds agreed to (or deemed to be agreed to) by Buyer and Seller in accordance with the terms of Section 2.1(c) or, if applicable, the definitive Closing Date Working Capital, Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds resulting from the determinations made by the Neutral Auditor in accordance with this Section 2.1(d) (in addition to those items theretofore Capital either as agreed to by Seller and Buyerthe Purchaser, or as deemed final pursuant to Section 1.5(c)(ii), or as adjusted pursuant to Section 1.5(c)(iv), shall be final and binding on the parties hereto and will be referred to as the “Final Net Working Capital”.
(vi) The Purchaser and Seller shall cooperate and assist in good faith in the determination of the Final Net Working Capital and in the conduct of the reviews referred to in this Section 1.5, including making available, to the extent reasonably necessary, books, records, work papers and personnel at such reasonable times as the Purchaser or Seller shall request and permitting (at the expense of the requesting party) the copying of records or extracts thereof reasonably requested.
(vii) The Purchase Price shall be adjusted as follows following the Closing:
(1) If the Purchase Price was adjusted by the Adjustment Amount at Closing and the Final Net Working Capital is less than the Preliminary Net Working Capital by an amount greater than Ten Thousand and 00/100 Dollars ($10,000.00), then the Seller will cause the Purchaser to be promptly paid the positive difference between the Final Net Working Capital and the Preliminary Net Working Capital in accordance with Section 1.2(c)(vii)(6) below.
(2) If the Purchase Price was adjusted by the Adjustment Amount at Closing and the Final Net Working Capital is greater than the Preliminary Net Working Capital by an amount greater than Ten Thousand and 00/100 Dollars ($10,000.00), then the Purchaser shall promptly pay to Seller the difference between the Final Net Working Capital and the Preliminary Net Working Capital in accordance with Section 1.5(c)(vii)(5) below.
(3) If the Purchase Price was not adjusted at Closing by the Adjustment Amount and the Final Net Working Capital is less than the Target Net Working Capital by an amount greater than Ten Thousand and 00/100 Dollars ($10,000.00), then the Seller will cause the Purchaser to be promptly paid the positive difference between the Final Net Working Capital and the Target Net Working Capital in accordance with Section 1.5(c)(vii)(6) below.
(4) If the Purchase Price was not adjusted at Closing by the Adjustment Amount and the Final Net Working Capital is greater than the Target Net Working Capital by an amount greater than Ten Thousand and 00/100 Dollars ($10,000.00), then Purchaser shall promptly pay to Seller the difference between the Final Net Working Capital and the Target Net Working Capital in accordance with Section 1.5(c)(vii)(5) below.
(5) Payments required to be made pursuant to Sections 1.5(c)(vii)(2) or (4), if any, shall be made by the Purchaser promptly after the Final Net Working Capital is determined.
(6) If payments are required to be made pursuant to Section 1.5(c)(vii)(1) or (3), if any, Seller shall pay the amount due within five (5) Business Days after the Final Net Working Capital is determined by wire transfer of immediately available funds to the account designated by the Purchaser.
(viii) To the extent permitted by Law, any payments made under Section 1.5(c), shall be deemed adjustments to the Purchase Price for U.S. federal, state and local income Tax purposes.
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Net Working Capital Purchase Price Adjustment. (1) The Purchase Price will be increased or decreased, as the case may be, dollar-for-dollar, to the extent that the working capital as determined from the Closing Net Working Capital Statement (the “Closing Net Working Capital”) is more or less than the Estimated Net Working Capital;.
(2) If the Closing Net Working Capital, as determined from the Closing Net Working Capital Statement, is more than the Estimated Net Working Capital, the Purchaser will pay to the Vendor Representative (in trust for the Vendors, in accordance with their Pro Rata Shares), the amount of such difference as an increase to the Purchase Price. If the Closing Net Working Capital as determined from the Closing Net Working Capital Statement is less than the Estimated Net Working Capital, the Vendors will pay to the Purchaser, in accordance with their Pro Rata Shares, the amount of such difference as a decrease to the Purchase Price and such amounts shall be paid first from the Working Capital Escrow Amount as set forth in the Escrow Agreement.
(3) The Vendor Representative and the Purchaser will, within three (3) Business Days after the Draft Working Capital Statement becomes the Closing Working Capital Statement in accordance with Section 2.7(4) or Section 2.7(5), as the case may be, deliver to the Escrow Agent a certificate signed by both of them, certifying the amount of the payment to be made on account of the increase or decrease in the Purchase Price, if any, and the amount of the Working Capital Escrow Amount that is to be paid to the Vendors or the Purchaser.
(4) If there is an increase to the Purchase Price as a result of the adjustments made pursuant to Section 2.8(2):
(a) At least five Business Days prior all of the escrow funds relating to the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Buyer a statement (the “Estimated Closing Date Statement”) of Seller’s good faith estimate of (w) Working Capital Escrow Amount will be immediately released to the Vendor Representative (in trust for the “Estimated Closing Date Working Capital”)Vendors, (xin accordance with their Pro Rata Shares) Store Cash (the “Estimated Closing Date Store Cash”) (y) Non-Cash Sales Settlement Amount (the “Estimated Non-Cash Sales Settlement Amount”) and (z) Asset Sales Proceeds (the “Estimated Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Estimated Closing Date Statement shall be prepared in accordance with the definitions Escrow Agreement;
(b) Purchaser shall cause Golden Boy to pay to each LTIP Participant when due that amount of “Working Capital”, “Store Cash” the LTIP Holdback Amount that such LTIP Participant is entitled to receive pursuant to Section 3.7(a)(ii) of his LTIP Agreement and “Non-Cash Sales Settlement Amount” (as applicable) set forth herein based on the Closing LTIP Payment Amount Statement
(c) the Purchaser will pay the amount of such increase to the Purchase Price to, or to the direction of, the Vendor Representative (in trust for the Vendors, in accordance with their Pro Rata Shares), except that the amount of such payment shall be reduced by the amount that the LTIP Participants are entitled to receive under Section 3.7(a)(ii) and Section 3.7(b) of the LTIP Agreements less the LTIP Holdback Amount as set forth on the Closing LTIP Payment Amount Statement and Purchaser shall cause Golden Boy to pay such reduction to the LTIP Participants when due pursuant to Section 3.7(a)(ii) and Section 3.7(b) of their LTIP Agreements and as set forth on the Closing LTIP Payment Amount Statement.
(5) If there is a decrease to the Purchase Price as a result of the adjustments made pursuant to Section 2.8(2):
(a) If the decrease is less than the Working Capital Standard. The “Trued-Up Escrow Amount” shall be equal to , (i) the Initial Purchase Priceamount of the decrease, plus up to the Working Capital Escrow Amount, will be paid to the Purchaser, (ii) the excess, if any, balance of the Estimated Closing Date Working Capital over the Target Maximum Working Capital, less (ii) the excess, if any, of the Target Minimum Working Capital over the Estimated Closing Date Working Capital, less (iii) the excess, if any, of the Target Minimum Store Cash over the Estimated Closing Date Store Cash, plus (iv) the Non-Cash Sales Settlement Escrow Amount, if any, less will be immediately released to the Vendor Representative (in trust for the Vendors, in accordance with their Pro Rata Shares) in accordance with the Escrow Agreement, (iii) Purchaser shall cause Golden Boy to pay to each LTIP Participant when due that amount of the LTIP Holdback Amount that such LTIP Participant is entitled to receive pursuant to Section 3.7(a)(ii) of his LTIP Agreement and the amount payable to each LTIP Participant under Section 3.7(b) of his LTIP Agreement, all as set forth on the Closing LTIP Payment Amount Statement, (iv) Purchaser shall cause Golden Boy to return to Vendor Representative (to hold in trust for the Vendors, in accordance with their Pro-Rata Shares) any amount of the LTIP Holdback Amount not paid pursuant to Section 2.8(5)(a)(iii) as set forth on the Closing LTIP Payment Amount Statement, and (v) Vendor Representative shall be entitled pursuant to Section 10.4(7) to recover from the Asset Sales ProceedsLTIP Participants their pro-rata share of any additional amounts, if any. If the Trued-Up Amount is a positive amount, the Initial Purchase Price shall be increased or reduced, as applicable, to be equal to such Trued-Up Amount and, as so increased or reduced, shall be paid owing pursuant to the Seller pursuant to Section 1.1. If the Trued-Up Amount is a negative amount, the Initial Purchase Price shall be reduced to zero and Seller shall contribute to the Company on the Closing Date, in cash, the absolute amount by which the Trued-Up Amount is less than zero (the “Closing Date Capital Contribution”). The Initial Purchase Price as increased or decreased (but not below zero) to the Trued-Up Amount shall be the “Closing Date Cash Consideration” that is payable by the Buyer hereunder.LTIP Agreements; and
(b) Within 60 calendar days following if the Closing Datedecrease is greater than the Working Capital Escrow Amount, Buyer shall prepare(i) all of the escrow funds relating to the Working Capital Escrow Amount will be immediately released to the Purchaser, or cause (ii) the Vendors will pay directly to be preparedthe Purchaser, and deliver to Seller a statement (as such may be adjusted following resolution of disputes in accordance with Section 2.1(d)their Pro Rata Shares, the “Closing Date Statement”) of Working Capital (the “Closing Date Working Capital”), Store Cash (the “Closing Date Store Cash”), Non-Cash Sales Settlement Amount (the “Closing Date Non-Cash Sales Settlement Amount”) and Asset Sales Proceeds (“Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Closing Date Statement shall be prepared an amount equal to such deficiency in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” and “Asset Sales Proceeds” (as applicable) set forth herein, and (in the case of Working Capital, Store Cash and Non-Cash Sales Settlement Amount) on the basis excess of the Working Capital Standard.
Escrow Amount, (ciii) After receipt Purchaser shall cause Golden Boy to pay to each LTIP Participant when due that amount of the Closing Date Statement, Seller shall have 45 calendar days to review the Closing Date Statement, together with the work-papers used in the preparation thereof. Seller and its authorized representatives shall have reasonable access to all relevant personnel, books and records of Buyer, the Company and the Company’s Subsidiaries to the extent reasonably required to complete their review of the Closing Date Statement. Unless Seller delivers written notice to Buyer on or prior to the 45th calendar day after Seller’s receipt of the Closing Date Statement, Seller shall be deemed to have accepted and agreed to the calculation of Closing Date Working Capital, Closing Date Store Cash Closing Date Non-Cash Sales Settlement Amount and Closing Date Asset Sales Proceeds. Seller shall set forth in such notice reasonable detail for the basis of Seller’s objection or objections and the adjustments to the amount of Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds that Seller believes should be made. If Seller so notifies Buyer of its objection to the calculation of Closing Date Working Capital, Buyer and Seller shall, within 30 calendar days following such notice (the “Resolution Period”), attempt to resolve their differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive.
(d) If, at the conclusion of the Resolution Period, any amounts remain in dispute with respect to the Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds, then all amounts remaining in dispute shall be submitted to Xxxxx Xxxxxxxx LLP (the “Neutral Auditor”). Each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter, including customary indemnities in favor of the Neutral Auditor. All fees and expenses relating to the workLTIP Holdback Amount, if any, that such LTIP Participant is entitled to be performed by the Neutral Auditor shall be borne pro rata receive pursuant to Section 3.7(a)(ii) of his LTIP Agreement and as between Seller, set forth on the one handClosing LTIP Payment Amount Statement, and Buyer(iv) Purchaser shall cause Golden Boy to return to Vendor Representative (to hold in trust for the Vendors, on the other hand, in proportion to the allocation of the dollar value of the amounts remaining in dispute between Seller and Buyer made by the Neutral Auditor such that the prevailing party pays the lesser proportion of the fees and expenses. The Neutral Auditor shall act as an expert to determine, based solely on the provisions of this Section 2.1(d) and the presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and only as to whether such amounts were arrived at in conformity with Section 2.1(a) hereof or contain arithmetic error. The Neutral Auditor’s determination shall be made within 30 calendar days of the submission of the amounts remaining in dispute by the parties to the Neutral Auditor, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The terms “Final Closing Date Working Capital”, “Final Closing Date Store Cash”, “Final Closing Date Non-Cash Sales Settlement Amount” and “Final Closing Date Asset Sales Proceeds”) shall mean, respectively, the definitive Closing Date Working Capital, the definitive Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds agreed to (or deemed to be agreed to) by Buyer and Seller in accordance with their Pro-Rata Shares) any amount of the terms LTIP Holdback Amount not paid pursuant to Section 2.8(5)(b)(iii) as set forth on the Closing LTIP Payment Amount Statement, and (v) Vendor Representative shall be entitled pursuant to Section 10.4(7) to recover from the LTIP Participants their pro-rata share of Section 2.1(c) orany additional amounts, if applicableany, owing pursuant to the definitive Closing Date Working Capital, Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds resulting from the determinations made LTIP Agreements.
(6) Any amounts to be paid directly by the Neutral Auditor in accordance with Vendors or the Purchaser under this Section 2.1(d2.8 will be paid by wire transfer or direct deposit of immediately available funds within five (5) (in addition to those items theretofore agreed to by Seller and Buyer)Business Days after the Draft Working Capital Statement becomes the Closing Working Capital Statement.
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Net Working Capital Purchase Price Adjustment. (a) At least five Business Days prior The Initial Purchase Price shall be subject to increase or decrease after the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Buyer a statement (the “Estimated Closing Date Statement”) of Seller’s good faith estimate of (w) Working Capital (the “Estimated Closing Date Working Capital”), (x) Store Cash (the “Estimated Closing Date Store Cash”) (y) Non-Cash Sales Settlement Amount (the “Estimated Non-Cash Sales Settlement Amount”) and (z) Asset Sales Proceeds (the “Estimated Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business based on the Closing Date and a detailed calculation thereof. The Estimated Closing Date Statement shall be prepared in accordance with the definitions of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” (as applicable) set forth herein based on the Net Working Capital Standard. The “Trued-Up Amount” shall be equal to of the Company, as follows:
(i) the Initial Purchase Price, plus (ii) the excess, if any, of the Estimated Closing Date Working Capital over the Target Maximum Working Capital, less (ii) the excess, if any, of the Target Minimum Working Capital over the Estimated Closing Date Working Capital, less (iii) the excess, if any, of the Target Minimum Store Cash over the Estimated Closing Date Store Cash, plus (iv) the Non-Cash Sales Settlement Amount, if any, less (v) the Asset Sales Proceeds, if any. If the Trued-Up Amount is a positive amount, the The Initial Purchase Price shall be increased or reduced, as applicable, to be equal to such Trued-Up Amount and, as so increased or reduced, shall be paid to by the Seller pursuant to Section 1.1. If the Trued-Up Amount is a negative dollar amount, the Initial Purchase Price shall be reduced to zero and Seller shall contribute to the Company on the Closing Dateif any, in cash, the absolute amount by which the Trued-Up Amount is less than zero Net Working Capital of the Business as of the end of the Closing Date (the “Closing Date Capital ContributionNet Working Capital”). The Initial Purchase Price as increased ) exceeds zero or decreased (but not below zero) to by the Trued-Up Amount shall be dollar amount, if any, by which the “Closing Date Cash Consideration” that Net Working Capital is payable by the Buyer hereunderless than zero.
(bii) Within 60 calendar one hundred eighty (180) days following after the Closing Date, the Buyer shall prepare, or cause to be prepared, and deliver to the Seller a statement (balance sheet of the Business as such may be adjusted following resolution of disputes in accordance with Section 2.1(d), the “Closing Date Statement”) of Working Capital (the “Closing Date Working CapitalBalance Sheet”), Store Cash (the “Closing Date Store Cash”), Non-Cash Sales Settlement Amount (the “Closing Date Non-Cash Sales Settlement Amount”) and Asset Sales Proceeds (“Closing Date Asset Sales Proceeds”) of the Company and its Subsidiaries as of the close of business on the Closing Date and a detailed calculation thereof. The Closing Date Statement Balance Sheet shall be prepared in accordance with GAAP and in a manner consistent with the definitions form of “Working Capital”, “Store Cash” and “Non-Cash Sales Settlement Amount” and “Asset Sales Proceeds” Balance Sheet attached hereto as Exhibit E (as applicable) set forth herein, and (including all adjustments reflected thereon which the parties acknowledge are not in the case of Working Capital, Store Cash and Non-Cash Sales Settlement Amount) on the basis of the Working Capital Standardaccordance with GAAP).
(ciii) After receipt Concurrently with the delivery to the Seller of the Closing Date StatementBalance Sheet, the Buyer shall also deliver to the Seller shall have 45 calendar days to review a written statement (the “Statement of Net Working Capital Adjustment”) setting forth the Closing Date Statement, together with the work-papers used in the preparation thereof. Seller and its authorized representatives shall have reasonable access to all relevant personnel, books and records of Buyer, the Company and the Company’s Subsidiaries to the extent reasonably required to complete their review of Net Working Capital based on the Closing Date StatementBalance Sheet and showing the calculation thereof. Unless If the Seller delivers has any objections to the Closing Date Balance Sheet or the Statement of Net Working Capital Adjustment, the Seller shall give written notice to Buyer on or prior to the 45th calendar day Buyer, in reasonable detail, of such objections within thirty (30) days after Seller’s receipt of Seller receives the Closing Date StatementBalance Sheet and the Statement of Net Working Capital Adjustment. If the Seller does not give written notice to the Buyer of any such objections by the end of such thirty-day period, then the Statement of Net Working Capital Adjustment shall be considered final. If the Seller does give written notice to the Buyer of any such objections by the end of such thirty-day period, then the Buyer and the Seller shall be deemed work in good faith for a period of forty-five (45) days to have accepted resolve their differences, which shall include allowing each party access and agreed to review of their respective work papers and related documents. If the calculation of Closing Date Working Capital, Closing Date Store Cash Closing Date Non-Cash Sales Settlement Amount and Closing Date Asset Sales Proceeds. Seller shall set forth in such notice reasonable detail for the basis of Seller’s objection or objections Buyer and the adjustments to the amount of Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds that Seller believes should be made. If Seller so notifies Buyer of its objection to the calculation of Closing Date Working Capital, Buyer and Seller shall, within 30 calendar days following such notice (the “Resolution Period”), attempt are unable to resolve their differences and any resolution by them as to within such forty-five-day period, then any disputed amounts shall be final, binding and conclusive.
(d) If, at the conclusion of the Resolution Period, any amounts remain in dispute with respect to the Closing Date Working Capital, Closing Date Store Cash, Closing Date Non-Cash Sales Settlement Amount and/or Closing Date Asset Sales Proceeds, then all amounts remaining in dispute items shall be submitted for resolution to Xxxxx Xxxxxxxx LLP an independent nationally recognized certified public accounting firm selected by the mutual agreement of the Seller and the Buyer (the “Neutral AuditorArbiter”). Each party agrees , with the costs thereof to execute, if requested be paid fifty percent (50%) by the Neutral Auditor, a reasonable engagement letter, including customary indemnities in favor of the Neutral Auditor. All fees Seller and expenses relating to the work, if any, to be performed fifty percent (50%) by the Neutral Auditor shall be borne pro rata as between Seller, on the one hand, and Buyer, on the other hand, in proportion to the allocation of the dollar value of the amounts remaining in dispute between Seller and Buyer made by the Neutral Auditor such that the prevailing party pays the lesser proportion of the fees and expenses. The Neutral Auditor shall act as an expert to determine, based solely on the provisions of this Section 2.1(d) and the presentations by Seller and Buyer, and not by independent review, only those issues still in dispute and only as to whether such amounts were arrived at in conformity with Section 2.1(a) hereof or contain arithmetic error. The Neutral Auditor’s determination the Arbiter shall be made within 30 calendar days instructed to deliver a final Statement of the submission of the amounts remaining in dispute by the parties Net Working Capital Adjustment to the Neutral AuditorSeller and the Buyer as soon as possible, which Statement of Net Working Capital Adjustment shall be set forth in a written statement delivered to Seller conclusive and binding on Buyer and shall be final, binding and conclusive. The terms “Final Closing Date Working Capital”, “Final Closing Date Store Cash”, “Final Closing Date Non-Cash Sales Settlement Amount” and “Final Closing Date Asset Sales Proceeds”) shall mean, respectively, the definitive Closing Date Working Capital, the definitive Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds agreed to (or deemed to be agreed to) by Buyer and Seller in accordance with the terms of Section 2.1(c) or, if applicable, the definitive Closing Date Working Capital, Closing Date Store Cash, the definitive Closing Date Non-Cash Sales Settlement Amount and the definitive Closing Date Asset Sales Proceeds resulting from the determinations made by the Neutral Auditor in accordance with this Section 2.1(d) (in addition to those items theretofore agreed to by Seller and Buyer)Seller.
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