Common use of Pre-Closing Purchase Price Adjustment Clause in Contracts

Pre-Closing Purchase Price Adjustment. Not less than three (3) Business Days prior to the Closing Date, an authorized officer of the Company shall provide to Parent a written statement containing (i) a balance sheet of the Company and its Subsidiaries as of the Effective Time (the “Estimated Closing Balance Sheet”) and, based thereon, the Company’s good faith estimate of (A) the Cash (the “Estimated Cash”), (B) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (C) Net Working Capital (the “Estimated Net Working Capital”), and (D) the Transaction Expenses as of immediately prior to the Effective Time (the “Estimated Transaction Expenses”), and (ii) after taking into account the determinations set forth in clause (i) hereof, the calculation of the Estimated Purchase Price. In preparing the Estimated Closing Balance Sheet and the calculation of the Estimated Purchase Price, all terms of an accounting or financial nature shall (a) be based exclusively on the facts and circumstances as they existed as of immediately prior to the Effective Time and shall exclude the effects of the Transactions, (b) be construed in accordance with GAAP (as modified by the Historical Accounting Practices), applied consistently with the Financial Statements, as modified by (c) the accounting policies and procedures and methodology set forth or reflected in Annex II (collectively, the “Policies and Procedures”); provided that, in the event of a conflict between clause (b) and clause (c), the Policies and Procedures shall control. In addition to the written statement provided pursuant to this Section 2.9, an authorized officer of the Company, with the approval of the Blocker Seller, shall provide to Parent a final Payment Schedule based on the Estimated Purchase Price; provided, that the Blocker Seller agrees that such consent shall not be unreasonably withheld and it shall be deemed unreasonable if Blocker Seller withholds approval of the final Payment Schedule for changes thereto that give effect to the provisions of this Agreement, the Redemption and/or the Company LLC Agreement.

Pre-Closing Purchase Price Adjustment. Not less than At least three (3) Business Days prior to the Closing Date, an authorized officer of the Company Seller shall provide deliver to Parent Buyer a written statement containing (i) a balance sheet of the Company and its Subsidiaries as of the Effective Time (the “Estimated Closing Balance SheetStatement”) and, based thereon, setting forth Seller’s reasonably detailed calculation of the Company’s Estimated Net Purchase Price including a good faith estimate of (Ai) the amount of Cash (such estimate, the “Estimated Cash”), (Bii) the amount of Closing Indebtedness, (iii) the Seller Expenses to the extent unpaid as of (or payable upon consummation of) the Closing Date Indebtedness (such estimate, the “Estimated Closing Date IndebtednessSeller Expenses”), ) and (Civ) the Net Working Capital (such estimate, the “Estimated Net Working Capital”), in the case of Estimated Cash and (D) Estimated Working Capital, determined in accordance with the Transaction Expenses Applicable Accounting Principles, and in the case of the Estimated Working Capital, using the same methodology as is set forth in Section 1.5 of immediately prior to the Effective Time Disclosure Letter (the “Estimated Transaction ExpensesSample Methodology”)) consistently applied, except that estimates and calculations: (x) shall not include any purchase accounting or other adjustments made by Buyer in respect of its own accounting policies at the Closing (such as the preparation of an opening balance sheet) arising out of the consummation of the transactions contemplated by this Agreement and (iiy) after taking into account the determinations set forth in clause (i) hereof, the calculation of the Estimated Purchase Price. In preparing the Estimated Closing Balance Sheet and the calculation of the Estimated Purchase Price, all terms of an accounting or financial nature shall (a) be based exclusively on the underlying facts and circumstances as they existed exist at the Closing. If the Estimated Working Capital is less than the Target Working Capital, the Estimated Net Purchase Price will be reduced by the amount of such shortfall (the “Working Capital Underage”) as provided in the last sentence of immediately prior to this paragraph. If the Effective Time and shall exclude Estimated Working Capital is greater than the effects Target Working Capital, the Estimated Net Purchase Price will be increased by the amount of such excess (the Transactions“Working Capital Overage”) as provided in the last sentence of this paragraph. As used herein, “Estimated Net Purchase Price” means the Purchase Price plus (A) the Estimated Cash, plus (B) any Working Capital Overage, minus (C) the sum of (i) the Closing Indebtedness, (b) be construed in accordance with GAAP (as modified by the Historical Accounting Practices), applied consistently with the Financial Statements, as modified by (cii) the accounting policies Estimated Seller Expenses and procedures and methodology set forth or reflected in Annex II (collectively, the “Policies and Procedures”); provided that, in the event of a conflict between clause (biii) and clause (c), the Policies and Procedures shall control. In addition to the written statement provided pursuant to this Section 2.9, an authorized officer of the Company, with the approval of the Blocker Seller, shall provide to Parent a final Payment Schedule based on the Estimated Purchase Price; provided, that the Blocker Seller agrees that such consent shall not be unreasonably withheld and it shall be deemed unreasonable if Blocker Seller withholds approval of the final Payment Schedule for changes thereto that give effect to the provisions of this Agreement, the Redemption and/or the Company LLC Agreementany Working Capital Underage.

Pre-Closing Purchase Price Adjustment. Not less than three (3a) At least five (5) Business Days prior to the Closing Date, an authorized officer of Seller shall prepare and deliver to Buyer a statement setting forth the Company shall provide to Parent a written statement containing (i) a balance sheet of the Company and its Subsidiaries as of the Effective Time Aggregate Interim Capital Expenditures For Development Projects (the “Estimated Closing Balance Sheet”) and, based thereon, the Company’s good faith estimate of (A) the Cash (the “Estimated CashCapital Expenditure Statement”), together with a certificate of a senior officer of Seller certifying the accuracy of the Capital Expenditure Statement. The Base Purchase Price shall be increased dollar for dollar by the Aggregate Interim Capital Expenditures For Development Projects. All adjustments made pursuant to this Section 2.4 shall, to the maximum extent permitted by applicable Law, be treated by all parties hereto (Band all of their Affiliates) for all Tax purposes as adjustments to the Total Purchase Price. (b) At least five (5) Business Days prior to the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”)Date, (C) Net Working Capital Seller shall prepare and deliver to Buyer an estimate (the “Estimated Net Working Capital Statement”) of the Target Company’s Net Working Capital as of the close of business on the date immediately preceding the Closing Date (the “Estimated Closing Net Working Capital”), together with a reasonably detailed explanation of the calculation thereof and (D) a certificate of a senior officer of Seller stating that the Transaction Expenses Estimated Net Working Capital Statement reflects the Target Company’s good faith estimates of Net Working Capital as of the close of business on the date immediately prior preceding the expected Closing Date and was prepared in a manner consistent with the principles set forth in the definitions of Current Assets and Current Liabilities. At the Closing: (i) if the Estimated Closing Net Working Capital is less than the Target Net Working Capital, the Closing Base Purchase Price shall be reduced by an amount equal to the Effective Time (the “Estimated Transaction Expenses”), and such deficiency; and (ii) after taking into account if the determinations set forth in clause (i) hereofEstimated Closing Net Working Capital exceeds the Target Net Working Capital, the calculation Closing Base Purchase Price shall be increased by an amount equal to such excess. (iii) For the avoidance of doubt, any failure by Buyer to object to the determination of the Estimated Purchase Price. In preparing the Estimated Closing Balance Sheet and the calculation of the Estimated Purchase PriceNet Working Capital shall not in any way limit Buyer’s rights under Section 2.5, all terms of an accounting or financial nature shall (a) be based exclusively on the facts and circumstances as they existed as of immediately prior including with respect to the Effective Time and shall exclude the effects of the Transactions, (b) be construed in accordance with GAAP (as modified by the Historical Accounting Practices), applied consistently with the Financial Statements, as modified by (c) the accounting policies and procedures and methodology set forth or reflected in Annex II (collectively, the “Policies and Procedures”); provided that, in the event of a conflict between clause (b) and clause (c), the Policies and Procedures shall control. In addition to the written statement provided pursuant to this Section 2.9, an authorized officer of the Company, with the approval of the Blocker Seller, shall provide to Parent a final Payment Schedule based items on the Estimated Purchase Price; provided, that the Blocker Seller agrees that such consent shall not be unreasonably withheld and it shall be deemed unreasonable if Blocker Seller withholds approval of the final Payment Schedule for changes thereto that give effect to the provisions of this Agreement, the Redemption and/or the Company LLC AgreementNet Working Capital Statement.

Pre-Closing Purchase Price Adjustment. Not less than three The Company shall provide the Investor with a written statement (3the “Statement”) reflecting the calculation of the Closing Purchase Price including, in reasonable detail and together with such calculations, records, documents, worksheets, working papers, line item details for accounts, schedules and other data that support its good faith estimate of (i) the total Additional Capital Contribution Amount, if any, (ii) the amount of any Equity Contribution Excess, if any, (iii) the amount of any Equity Contribution Shortfall, if any, (iv) the amount of any Early Closing Time Value Adjustment, if any, and (v) the amount of any Late Closing Time Value Adjustment, if any, at least five (5) Business Days prior to the Closing Date, an authorized officer of the Company . The Statement shall provide to Parent a written statement containing (i) a balance sheet of the Company and its Subsidiaries as of the Effective Time (the “Estimated Closing Balance Sheet”) and, based thereon, the Company’s be prepared in good faith estimate of (A) the Cash (the “Estimated Cash”), (B) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (C) Net Working Capital (the “Estimated Net Working Capital”), and (D) the Transaction Expenses as of immediately prior to the Effective Time (the “Estimated Transaction Expenses”), and (ii) after taking into account the determinations set forth in clause (i) hereof, the calculation of the Estimated Purchase Price. In preparing the Estimated Closing Balance Sheet and the calculation of the Estimated Purchase Price, all terms of an accounting or financial nature shall (a) be based exclusively on the facts and circumstances as they existed as of immediately prior to the Effective Time and shall exclude the effects of the Transactions, (b) be construed in accordance with GAAP (as modified by the Historical Accounting Practices)U.S. GAAP, applied consistently with the principles, practices, procedures and methodologies set forth in the Financial Statements, as modified by (c) . After the accounting policies and procedures and methodology set forth or reflected in Annex II (collectively, Investor’s receipt of the “Policies and Procedures”); provided that, in the event of a conflict between clause (b) and clause (c), the Policies and Procedures shall control. In addition to the written statement provided Statement pursuant to this Section 2.91.2(b), the Investor shall have an authorized officer opportunity to review the Statement and, within three (3) Business Days after the Investor’s receipt of the CompanyStatement, the Investor may (but is not required to) deliver to the Parent and the Company a written report containing any corrections in such calculations that the Investor proposes, if any, together with a reasonably detailed explanation of such corrections. The Parties shall discuss and reasonably cooperate in good faith with respect to any proposed corrections to the approval of Statement and the Blocker Sellerresolution thereof. The Statement, as agreed upon in writing by the Parties, shall provide control for purposes of all payments to Parent a final Payment Schedule based on the Estimated Purchase Pricebe made at Closing; provided, that if the Blocker Seller agrees that Investor, on the one hand, and the Parent and the Company, on the other hand, do not agree in writing upon any or all of the adjustments set forth in the Statement, then the amount of such consent shall not disputed adjustment or adjustments used to calculate the payments to be unreasonably withheld and it made at Closing shall be deemed unreasonable if Blocker Seller withholds approval of that amount set forth in the final Payment Schedule for changes thereto that give effect Statement with respect to such disputed adjustment or adjustments delivered by the Company to the provisions of Investor pursuant to this Agreement, the Redemption and/or the Company LLC AgreementSection 1.2(b).

Pre-Closing Purchase Price Adjustment. Not less than three (3a) Business Days On or before the fifth business day prior to the Closing Date, an authorized the Seller shall cause to be prepared and delivered to the Buyer a certificate (the "Estimated Net Working Capital Certificate") signed by a senior officer of the Company shall provide to Parent Seller setting forth a written statement containing (i) a balance sheet calculation of the Company and its Subsidiaries as of the Effective Time (the “Estimated Closing Balance Sheet”) and, based thereon, the Company’s good faith estimate of (A) the Cash (the “Estimated Cash”), (B) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), (C) estimated Net Working Capital (as defined below) of the “Company as of the Closing Date (the "Estimated Closing Net Working Capital") which shall be prepared in accordance with generally accepted accounting principles in the United Kingdom as consistently applied by the Company in the preparation of its statutory accounting package for Xxxxxxx PLC ("U.K. GAAP") and the Company Accounting Policies (as defined herein). The Buyer shall have forty-eight hours to review the Estimated Net Working Capital”Capital Certificate, after which, unless objected to by the Buyer on the basis of fraud or manifest error, for purposes of this Section 1.2, the Estimated Net Working Capital Certificate delivered by the Seller shall be binding on the Buyer and the Seller. In the event that the Buyer objects to the Estimated Net Working Capital Certificate (as provided above), the Buyer and the Seller and their respective representatives shall resolve such objection in a mutually agreeable manner. In order to determine the Pre-Closing Purchase Price, the Initial Purchase Price shall be (Di) increased dollar-for-dollar by the Transaction Expenses as of immediately prior to amount by which the Effective Time Estimated Closing Net Working Capital exceeds $36.9 million (the “"Base Net Working Capital") or (ii) decreased dollar-for-dollar by the amount by which the Estimated Transaction Expenses”Closing Net Working Capital is less than the Base Net Working Capital. (b) For purposes of this Agreement, "Net Working Capital" means "Total Current Assets" minus "Total Current Liabilities" where: (i) "Total Current Assets" means inventory, trade receivables and cash (for the sake of clarity, book cash inclusive of deposit and other bank credits in transit, if any, and net of outstanding checks and other bank debits not yet cleared) on the Company's consolidated balance sheet (prepared in accordance with U.K. GAAP and the Company Accounting Policies), and (ii) after taking into account "Total Current Liabilities" means current payables (less than one year) and provisions for liabilities and charges but excluding stay bonus amounts. The parties agree that income taxes, deferred taxes and intercompany accounts payable and receivables will not be included in the determinations foregoing calculation, but third-party long-term Indebtedness other than Indebtedness deducted from the Pre-Closing Purchase Price will be included. For avoidance of doubt, the parties agree that Net Working Capital shall be calculated in the form and based upon (x) the accounts set forth on Exhibit A hereto and (y) the Company Accounting Policies. The parties also agree that there will be no reserves reflected on the certificate setting forth the Closing Net Working Capital in clause (i) hereof, the calculation respect of the Estimated Purchase Price. In preparing the Estimated Closing Balance Sheet Aurora Obligation (as defined herein) and the calculation in respect of the Estimated Purchase Price, all terms environmental matters set for in Schedule 4.13 and it being understood that the gross amount of an accounting or financial nature shall (a) the Aurora Obligation will be based exclusively reflected on the facts and circumstances as they existed as of immediately prior to certificate setting forth the Effective Time and shall exclude the effects of the Transactions, (b) be construed in accordance with GAAP (as modified by the Historical Accounting Practices), applied consistently with the Financial Statements, as modified by (c) the accounting policies and procedures and methodology set forth or reflected in Annex II (collectively, the “Policies and Procedures”); provided that, in the event of a conflict between clause (b) and clause (c), the Policies and Procedures shall control. In addition to the written statement provided pursuant to this Section 2.9, an authorized officer of the Company, with the approval of the Blocker Seller, shall provide to Parent a final Payment Schedule based on the Estimated Purchase Price; provided, that the Blocker Seller agrees that such consent shall not be unreasonably withheld and it shall be deemed unreasonable if Blocker Seller withholds approval of the final Payment Schedule for changes thereto that give effect to the provisions of this Agreement, the Redemption and/or the Company LLC AgreementClosing Net Working Capital.