Common use of Working Capital Purchase Price Adjustment Clause in Contracts

Working Capital Purchase Price Adjustment. At the Closing, the Seller will deliver to the Buyer a schedule of the accounts receivable of the Stations owing to the Seller as of the close of business on the Closing Date. The Buyer agrees to use commercially reasonable efforts in the ordinary course of business (but without responsibility to institute legal or collection proceedings) to collect such accounts receivable during the 120-day period following the Closing Date from any advertiser. The Buyer shall apply said moneys to the oldest outstanding balance due on the particular account, except in the case of a "disputed" account receivable. For purposes of this Section 7(d), a "disputed" account receivable means one which the account debtor refuses to pay because he asserts that the money is not owed or the amount is incorrect. In the case of such a disputed account, the Buyer shall immediately assign the account to the Seller prior to expiration of the 120-day period following the Closing Date. If the Buyer returns a disputed account to the Seller, the Buyer shall have no further responsibility for its collection and may accept payment from the account debtor for advertising carried on any of the Stations after the Closing Date. At the end of the 120-day period following the Closing Date, the Buyer will assign to the Seller all of the accounts receivable of the Stations as of the Closing Date owing to the Seller which have not yet been collected, and the Buyer will thereafter have no further responsibility with respect to the collection of such receivables. At the end of the 120-day period following the Closing Date, the Buyer will pay to the Seller as the purchase price for such collected accounts an amount (the "Working Capital Price Adjustment") equal to the aggregate collections of accounts receivable of the Stations as of the Closing Date, plus any Cash of the Company on hand as of the Closing Date, less the aggregate amount of any Liabilities of Seller as of the Closing Date paid by the Seller after the Closing Date.

Working Capital Purchase Price Adjustment. At (i) Within 5 days prior to the Call Closing, the Seller will shall deliver to the Buyer a schedule of preliminary statement (the accounts receivable of the Stations owing to the Seller “Estimated Statement”) setting forth, as of the close month end prior to the anticipated Closing Date, the estimated Closing Date Net Working Capital Amount of business the EPE Entities. The Estimated Statement shall be prepared in accordance with GAAP applied consistently with past practice but subject to normal audit adjustments. (ii) If the estimated Closing Date Net Working Capital Amount as stated on the Estimated Statement is greater than zero Dollars ($0.00) (the “Targeted Closing Date Net Working Capital Amount”), then the applicable Purchase Price payable by Buyer at the Call Closing shall be increased by an amount equal to such excess. If the estimated Closing Date Net Working Capital Amount as stated on Estimated Statement is less than the Targeted Closing Date Net Working Capital Amount, then the applicable Purchase Price payable by Buyer at the Call Closing shall be decreased by an amount equal to such shortfall. (iii) Within 20 days after the Call Closing, Seller shall deliver to Buyer a preliminary statement (the “Preliminary Statement”) setting forth the Closing Date Net Working Capital Amount as of the Closing Date. The Preliminary Statement shall be prepared in accordance with GAAP, applied consistently with past practice but subject to normal audit adjustments. (iv) Buyer agrees shall have 60 days to use commercially reasonable efforts in review the ordinary course Preliminary Statement from the date of business its receipt thereof (but without responsibility the “Review Period”). If Buyer objects to institute legal or collection proceedingsany aspect of the Preliminary Statement, then Buyer shall deliver a written notice of objection (the “Objection Notice”) to collect such accounts receivable during Seller on or prior to the 120-day period following expiration of the Closing Date from any advertiserReview Period. The Buyer Objection Notice shall apply said moneys identify in reasonable detail adjustments to the oldest outstanding balance due on Preliminary Statement proposed by Buyer and the particular account, except basis therefor. If Buyer delivers an Objection Notice to Seller prior to the expiration of the Review Period in the case of a "disputed" account receivable. For purposes of accordance with this Section 7(d1.3(d), Buyer and Seller shall, for a "disputed" account receivable means one which period of 30 days thereafter (the account debtor refuses “Resolution Period”), attempt in good faith to pay because he asserts that resolve the money is not owed or matters properly contained therein, and any written resolution, signed by each of Buyer and Seller, as to any such matter shall be final, binding, conclusive and non-appealable for all purposes hereunder. (v) If, at the amount is incorrect. In conclusion of the case of such a disputed accountResolution Period, the Buyer shall immediately assign the account and Seller have not reached an agreement with respect to all disputed matters related to the Seller prior to expiration of the 120-day period following the Closing Date. If the Buyer returns a disputed account to the SellerPreliminary Statement, then within 10 business days thereafter, the Buyer and Seller shall have no further responsibility submit for its collection resolution those of such matters remaining in dispute to a mutually acceptable nationally recognized independent accounting firm (the “Neutral Auditor”). The Neutral Auditor shall act as an arbitrator to resolve (based solely on the written presentations of Buyer and may accept payment from the account debtor for advertising carried on any of the Stations after the Closing Date. At Seller and not by independent review) only those matters still in dispute at the end of the 120Resolution Period. The resolution of any such disputed matter by the Neutral Auditor shall be limited (A) to whether the Preliminary Statement was prepared with respect to such matter in accordance with the standard set forth in Section 1.3(d)(i), and, (B) if the Preliminary Statement has not been so prepared, to modifying the Preliminary Statement to reflect the recalculation of such matter in accordance with such standard. Buyer and Seller shall direct the Neutral Auditor to render a resolution of all such disputed matters within 30 days after its engagement or such other period agreed upon by Buyer and Seller. The resolution of such disputed matters by the Neutral Auditor shall be set forth in a written statement delivered to Buyer and Seller and shall be final, binding, conclusive and non-day period following appealable for all purposes hereunder. The Preliminary Statement, once modified and/or agreed to in accordance with Section 1.3(d)(iv) or this Section 1.3(d)(v), shall become the Closing Date, the Buyer will assign “Final Statement”. (vi) All fees and expenses relating to the Seller work performed by the Neutral Auditor shall be borne one half by Buyer and one half by Seller. Except as provided in the preceding sentence, all of other costs and expenses incurred by the accounts receivable of parties in connection with resolving any dispute hereunder before the Stations as of Neutral Auditor shall be borne by the party incurring such cost and expense. (vii) (A) If the Closing Date owing to the Seller which have not yet been collected, and the Buyer will thereafter have no further responsibility with respect to the collection of such receivables. At the end of the 120-day period following the Closing Date, the Buyer will pay to the Seller as the purchase price for such collected accounts an amount (the "Net Working Capital Price Adjustment") equal to Amount as stated on the aggregate collections of accounts receivable of the Stations as of the Closing Date, plus any Cash of the Company on hand as of the Closing Date, less the aggregate amount of any Liabilities of Seller as of Final Statement is greater than the Closing Date paid Net Working Capital Amount as stated on the Estimated Statement and reflected in the Purchase Price in accordance with Section 1.3(d)(ii), then Buyer shall pay an amount equal to such excess by the wire transfer of immediately available funds to Seller to such account as shall be designated by Seller, such payment to be made within five Business Days after the Closing Datedate on which the Preliminary Statement becomes the Final Statement.

Working Capital Purchase Price Adjustment. At the Closing, (a) Section 2.9 of the Seller will deliver Disclosure Schedules sets forth a calculation of the Target Working Capital (the “Sample Closing Statement”), including the asset and liability line items, general ledger accounts and accounting principles used in such calculation to the Buyer a schedule of extent not consistent with GAAP (the accounts receivable of the Stations owing “Transaction Accounting Principles”). (b) At least two Business Days prior to the Seller as of the close of business on the Closing Date, Seller shall cause to be prepared and delivered to Purchaser a closing statement (the “Closing Statement”) setting forth a good faith estimate of the Adjustment Amount (such estimate, the “Estimated Adjustment Amount”) and the calculation of such Estimated Adjustment Amount, including estimates of the Closing Working Capital. The Buyer Closing Statement shall be prepared in accordance with the Transaction Accounting Principles. Purchaser agrees to use commercially reasonable efforts in the ordinary course of business (but without responsibility to institute legal or collection proceedings) to collect such accounts receivable during the 120-day period that, following the Closing Date from any advertiser. The Buyer shall apply said moneys to through the oldest outstanding balance due on date that the particular account, except Post-Closing Statement becomes final and binding in the case of a "disputed" account receivable. For purposes of accordance with this Section 7(d)2.9, a "disputed" account receivable means one it will not take any actions with respect to any accounting books, records, policies or procedures on which the account debtor refuses to pay because he asserts that the money is not owed Sample Closing Statement or the amount Closing Statement is incorrect. In based, or on which the case of such a disputed accountPost-Closing Statement is to be based, that would materially impede or delay the Buyer shall immediately assign the account to the Seller prior to expiration final determination of the 120Post-day period following Closing Statement. Seller and Purchaser acknowledge that (i) the sole purpose of the determination of the Closing Date. If Statement is to adjust the Buyer returns a disputed account Purchase Price so as to reflect the Seller, the Buyer shall have no further responsibility for its collection and may accept payment change in net working capital resulting only from the account debtor for advertising carried on any operation of the Stations Industrial Wood Business and (ii) such change can be measured properly only if the calculation is done in accordance with the Transaction Accounting Principles. (c) Within 60 days after the Closing Date. At , Seller shall cause to be prepared and delivered to Purchaser a working capital statement (the end “Post-Closing Statement”), setting forth the Adjustment Amount and the calculation of the 120-day period following Adjustment Amount, including the Closing Date, Working Capital. The Post-Closing Statement shall be prepared in accordance with the Buyer will assign to the Seller all Transaction Accounting Principles. (d) Within 75 days following receipt by Purchaser of the accounts receivable Post-Closing Statement, Purchaser shall deliver written notice to Seller of the Stations as of the Closing Date owing to the Seller which have not yet been collected, and the Buyer will thereafter have no further responsibility any dispute Purchaser has with respect to the collection preparation or content of the Post-Closing Statement (the “Dispute Notice”); provided, however, that if Purchaser does not deliver any Dispute Notice to Seller within such 75-day period, the Post-Closing Statement will be final, conclusive and binding on the parties to this Agreement. The Dispute Notice shall set forth in reasonable detail the basis for any dispute included therein, the amounts involved and Purchaser’s determination of the Adjustment Amount, including the Closing Working Capital; provided, however, that any dispute set forth in the Dispute Notice shall be limited to the determination of the Adjustment Amount and Purchaser may not dispute the accounting principles, practices, methodologies and policies used in preparing the Post-Closing Statement unless they are inconsistent with the Transaction Accounting Principles. Upon receipt by Seller of a Dispute Notice, Purchaser and Seller shall negotiate in good faith to resolve any dispute set forth therein. If Purchaser and Seller, such good faith effort notwithstanding, fail to resolve any such dispute within 15 Business Days following receipt by Seller of the Dispute Notice (the “Dispute Resolution Period”), then Purchaser and Seller jointly shall engage, within ten Business Days following the expiration of the Dispute Resolution Period, KPMG US LLP or, if KPMG US LLP is unavailable or conflicted, another nationally recognized accounting firm selected jointly by Seller and Purchaser (the “Independent Accounting Firm”) to resolve any such dispute. If Seller and Purchaser are unable to agree on the Independent Accounting Firm then each of Seller and Purchaser shall select a nationally recognized accounting firm, and the two firms will mutually select a third nationally recognized accounting firm to serve as the Independent Accounting Firm. As promptly as practicable, and in any event not more than 15 days following the engagement of the Independent Accounting Firm, Purchaser and Seller shall each prepare and submit a presentation detailing each party’s complete statement of proposed resolution of each issue still in dispute to the Independent Accounting Firm (so long as the other party also receives a copy of such receivables. At presentation simultaneously) and shall be afforded the end opportunity to discuss such presentation with the Independent Accounting Firm in the presence of the 120other party. In connection with the resolution of the disputed items by the Independent Accounting Firm, no ex parte communications with the Independent Accounting Firm shall be permitted. Purchaser and Seller shall cause the Independent Accounting Firm to, as soon as practicable after the submission of such presentations and in any event not more than 30 days following such presentations, make a final determination in a written report delivered to Purchaser and Seller, binding on the parties to this Agreement, of the appropriate amount of each of the line items that remain in dispute as indicated in the Dispute Notice. With respect to each disputed line item, such determination, if not in accordance with the position of either Seller or Purchaser, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by Seller or Purchaser, as applicable, in their respective presentations. Notwithstanding the foregoing, the scope of the disputes to be resolved by the Independent Accounting Firm shall be limited to whether any determination of the Adjustment Amount was properly calculated in accordance with the Transaction Accounting Principles, and the Independent Accounting Firm is not to make any other determination, including any determination as to whether GAAP was followed, to the extent GAAP is inconsistent with the Transaction Accounting Principles. All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Seller and Purchaser. All determinations made by the Independent Accounting Firm, and the Post-day period following Closing Statement, as modified by the Independent Accounting Firm, will be final, conclusive and binding on the parties to this Agreement. (e) For purposes of complying with the terms set forth in this Section 2.9, Seller and Purchaser shall cooperate with and make available to each other and their respective Representatives all information, records, data and working papers, in each case, to the extent related to the Purchased Assets, Assumed Liabilities or Industrial Wood Business as they relate to the determination of Closing Working Capital and the Adjustment Amount, and shall permit reasonable access (upon reasonable advance notice) during normal business hours to its facilities and personnel in a manner so as not to unreasonably interfere with the conduct of such party’s business, as may be reasonably requested in connection with the preparation and analysis of the Post-Closing Statement and the resolution of any disputes thereunder. (f) (i) If the Closing DatePurchase Price, solely for this purpose calculated by applying the Buyer Adjustment Amount (as finally determined pursuant to Sections 2.9(c) and 2.9(d)) in lieu of the Estimated Adjustment Amount, is less than the Closing Purchase Price actually paid pursuant to Section 2.8(a)(i), then the Purchase Price will be adjusted downward by the amount of such shortfall, and Seller shall pay or cause to the Seller as the purchase price for such collected accounts be paid an amount (the "Working Capital Price Adjustment") in cash equal to the aggregate collections such shortfall to Purchaser by wire transfer of immediately available funds to an account or accounts receivable designated in writing by Purchaser to Seller. Any such payment is to be made within five Business Days of the Stations date on which the Adjustment Amount is finally determined pursuant to this Section 2.9. (ii) If the Closing Purchase Price, solely for this purpose calculated by applying the Adjustment Amount (as finally determined pursuant to Sections 2.9(c) and 2.9(d)) in lieu of the Estimated Adjustment Amount, is greater than the Closing DatePurchase Price actually paid pursuant to Section 2.8(a)(i), plus any Cash then the Purchase Price will be adjusted upward by the amount of such excess, and Purchaser shall pay or cause to be paid an amount in cash equal to such excess to Seller by wire transfer of immediately available funds to an account or accounts designated in writing by Seller to Purchaser. Any such payment is to be made within five Business Days of the Company date on hand as of which the Closing Date, less the aggregate amount of any Liabilities of Seller as of the Closing Date paid by the Seller after the Closing DateAdjustment Amount is finally determined pursuant to this Section 2.9.

Working Capital Purchase Price Adjustment. At the Closing, the Seller will deliver (a) Prior to the Buyer a schedule of the accounts receivable of the Stations owing to the Seller as of the close of business on the Closing Date. The Buyer agrees , Sellers shall deliver to use commercially Purchaser a statement setting forth in reasonable efforts in detail Sellers’ estimate of the ordinary course of business Working Capital Adjustment (but without responsibility the “Estimated Working Capital Adjustment”), which calculation shall be acceptable to institute legal or collection proceedingsPurchaser, acting reasonably. (b) to collect such accounts receivable during the 120-day period following As promptly as practicable after the Closing Date from any advertiser. The Buyer shall apply said moneys to the oldest outstanding balance due on the particular accountDate, except but in the case of a "disputed" account receivable. For purposes of this Section 7(d), a "disputed" account receivable means one which the account debtor refuses to pay because he asserts that the money is not owed or the amount is incorrect. In the case of such a disputed account, the Buyer shall immediately assign the account to the Seller prior to expiration of the 120-day period no event later than sixty (60) days following the Closing Date, Purchaser shall cause to be prepared and delivered to Sellers (i) a balance sheet as of the Closing Date (the “Closing Date Balance Sheet”), (ii) a calculation of gross revenues for the twelve-month period ending on the Closing Date (the “Gross Revenue Amount”) and (iii) a statement setting forth Purchaser’s calculation of the Working Capital as of the Closing Date (the “Closing Working Capital”), including supporting schedules for each line item comprising Closing Working Capital (the “Purchaser’s Closing Working Capital Statement” and, collectively with the items delivered pursuant to clauses (i) and (ii) of this sentence, the “Purchaser’s Adjustment Documents”). If In the Buyer returns a disputed account event Sellers do not object to the SellerPurchaser’s Adjustment Documents by written notice of objection delivered to Purchaser within thirty (30) days after Sellers’ receipt of the Purchaser’s Adjustment Documents, the Buyer Purchaser’s Adjustment Documents shall have no further responsibility for its collection be deemed final and binding on the Parties. A notice of objection under this Section 1.3(b) shall specify in reasonable detail all disputed items contained in the Purchaser’s Adjustment Documents. During the thirty (30) day period following Purchaser’s receipt of such notice of objection (as the same may accept payment from the account debtor for advertising carried on any be extended by mutual agreement of the Stations after Parties, the Closing Date“Resolution Period”), the Parties shall attempt to resolve their differences and any resolution by them as to any disputed items shall be final and binding. At Any items remaining in dispute at the end of the 120Resolution Period shall be submitted to arbitration in accordance with Section 1.3(d). (c) During the twenty-day period one (21) days following the Closing Date, the Buyer will assign Parties shall attempt to agree upon a reasonable accrual for the Seller all of the accounts receivable of the Stations Company’s self-insured liabilities as of the Closing Date owing (the “Self-Insurance Accrual”). If the Parties have not agreed upon the Self-Insurance Accrual by the end of such period, the Parties shall select an independent actuary (the “Actuary”) to calculate the amount of the Self-Insurance Accrual. If the Parties cannot agree on the selection of the Actuary, each Party shall have the right to request the American Arbitration Association to appoint the Actuary. The Actuary shall be a certified actuary who has not had a material relationship with Purchaser, the Company, Sellers or any of their respective Affiliates within the past two years. Purchaser and Sellers shall use their commercially reasonable efforts to cause the Actuary to render its calculation of the Self-Insurance Accrual within twenty-one (21) days of the selection of the Actuary. The determination by the Actuary of the Self-Insurance Accrual shall be provided to the Seller which have arbitrator in any arbitration pursuant to Section 1.3(d), but shall not yet been collected, be binding on the Parties and any continuing dispute among the Buyer will thereafter have no further responsibility with respect Parties as to the collection amount of such receivables. At the Self-Insurance Accrual shall be resolved, along with any other items in dispute at the end of the 120Resolution Period, by arbitration conducted pursuant to Section 1.3(d). Notwithstanding anything in this Agreement to the contrary, in the event that the Self-day period Insurance Accrual, as agreed to by the Parties or as determined pursuant to arbitration, is different than the amount of such accrual on the Balance Sheet Date, only fifty percent (50%) of such excess or shortfall shall increase Current Liabilities or decrease Current Assets, as the case may be, in the calculation of Closing Working Capital. The fees and expenses of the Actuary shall be borne fifty percent (50%) by Purchaser and fifty percent (50%) by Sellers. (d) If within ten (10) days following the Closing Dateend of the Resolution Period, the Buyer will pay Parties have been unable to agree on the selection of an independent certified public accounting firm to serve as the arbitrator, each Party shall have the right to request the American Arbitration Association to appoint the arbitrator. The arbitrator shall be an independent certified public accounting firm that has not had a material relationship with Purchaser, the Company, Sellers or any of their respective Affiliates within the past two years. Purchaser and Sellers shall use their commercially reasonable efforts to cause the arbitrator to render a decision in accordance with this Section 1.3(d) along with a statement of reasons therefor within thirty (30) days of the submission of the dispute to the Seller as the purchase price for such collected accounts an amount (the "Working Capital Price Adjustment") equal arbitrator, or a reasonable time thereafter. Each Party shall submit to the aggregate collections of accounts receivable arbitrator within the first five (5) days after the initiation of the Stations as arbitration its last best offer on the item(s) in dispute including reasonably detailed documentation showing such Party’s calculations of Closing Working Capital, the Gross Revenue Amount and each line item of the Closing DateDate Balance Sheet that is relevant to any calculation required pursuant to Sections 1.3, plus 4.9 and 5.2 of this Agreement, including without limitation, each reserve against any Cash of the Company on hand as of the Closing Date, less the aggregate amount of any Liabilities of Seller liability as of the Closing Date (collectively, the “Closing Financial Calculations”). Upon receipt of the last best offer of both Parties, the arbitrator shall provide the Parties with each other’s last best offer. The last best offers submitted by the Parties must incorporate any items agreed upon or deemed to be agreed upon pursuant to clause (b) or (c) of this Section 1.3. As to each matter in dispute, the arbitrator shall determine which of the Parties’ last best offers is more accurate and shall select that offer as the final determination of the matter in dispute. For the avoidance of doubt, (i) the arbitrator may not compromise and make a determination different from the last best offers submitted by the Parties, and (ii) a Party’s last best offer with respect to all items in dispute in the Closing Financial Calculations shall be deemed to be a single offer to be accepted or rejected in whole by the arbitrator. The decision of the arbitrator shall be final and binding on the Parties and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover. The fees and expenses of the arbitrator shall be paid by Purchaser if Sellers’ last best offer is selected by the Seller arbitrator or by the Sellers if Purchaser’s last best offer is selected by the arbitrator. (e) Upon the determination in accordance with this Section 1.3 of Closing Working Capital and the Gross Revenue Amount, the Working Capital Adjustment shall be recalculated. If the final Working Capital Adjustment is greater than the Estimated Working Capital Adjustment, Purchaser shall pay such difference to Sellers. If the final Working Capital Adjustment is less than the Estimated Working Capital Adjustment, Sellers shall pay such difference to Purchaser. Such payment shall be made by wire transfer in immediately available funds to an account specified in writing by the Party to whom the payment is owed within five (5) business days after the final and binding determination of each of Closing DateWorking Capital and the Gross Revenue Amount. Any amount owed but not paid within such five (5) business day period shall bear interest at an annual rate of six percent (6%) from the end of such period until paid. (f) From the Closing Date and until the final determination of the purchase price adjustment pursuant to Section 1.3(e), Sellers and their representatives shall have reasonable access during normal business hours to all relevant books and records (including the working papers, if any, of Purchaser’s and the Company’s auditors) and personnel of the Company in order to allow Sellers and their representatives to review and evaluate the accuracy of Purchaser’s Adjustment Documents.