Common use of Closing Calculation Clause in Contracts

Closing Calculation. After delivery of the Closing Statement, ------------------- Buyer shall be entitled to full access to the relevant books and records prepared by or for Seller to the extent required to review the calculation of Closing Adjustment set forth on the Closing Statement. If Buyer believes that the Closing Adjustment calculation (hereinafter the "Closing Calculation") has ------------------- not been properly calculated in accordance with the calculation methodologies set forth in this Section 3.3, it shall, within thirty (30) days after receipt of the Closing Calculation, give written notice (the "Objection") to Seller, --------- setting forth the basis of its belief in reasonable detail and the adjustments to the Closing Calculation which Buyer believes should be made. Failure to so notify Seller shall constitute acceptance and approval of the Closing Calculation. If Seller agrees that any change proposed by Buyer is appropriate, the change shall be made to the Closing Calculation. If any proposed change is disputed by Seller, then Seller and Buyer shall negotiate in good faith to resolve such dispute as expeditiously as possible. If, after a period of thirty (30) days following the date on which Buyer delivers the Objection, there remains any dispute as to the Closing Calculation, then, the Palo Alto office of Ernst & Young or another major accounting firm jointly selected by Seller and Buyer and with no ties to either Buyer or Seller (the "Neutral Accounting Firm"), shall be engaged ----------------------- to resolve any remaining disputes. The Neutral Accounting Firm shall act as an arbitrator to determine only those issues still in dispute. The Neutral Accounting Firm's determination, based upon the calculation methodologies set forth in this Section 3.3, shall be made within thirty (30) days following the date on which the dispute is submitted, shall be set forth in a written statement delivered to Seller and Buyer, and shall be final, binding and conclusive. The fees and any expenses of the Neutral Accounting Firm shall be shared equally by Seller and Buyer.

Closing Calculation. After delivery (1) Seller shall engage at its own expense PricewaterhouseCoopers LLP to perform the following agreed upon procedures with respect to the computation of the Closing StatementNAV as soon as practicable after the Closing Date: (i) review supporting documentation for the adjustments made to the amounts contained in the Books and Records of the Business as of the Closing Date for purposes of computing the Closing NAV in accordance with Section 2.3, ------------------- to determine that such adjustments were computed consistent with the adjustments used to compute the Base NAV included in SCHEDULE 2.3(C); (ii) verify the mathematical accuracy of the computation of the Closing NAV; and (iii) provide an agreed-upon procedures report addressed to both Seller and Buyer describing the procedures performed and the results of those procedures. Buyer shall be entitled to full access to the relevant books and records prepared by or for Seller to the extent required engage at its own expense PricewaterhouseCoopers LLP to review the calculation of Closing Adjustment set forth on the Seller's Closing Statement. If Buyer believes believes, after consultation with PricewaterhouseCoopers LLP, in good faith that the Closing Adjustment calculation (hereinafter the "NAV set forth on Seller's Closing Calculation") Statement has ------------------- not been properly calculated in accordance with the calculation methodologies set forth in this Section 3.32.3, it shall, within thirty (30) days after receipt of the Seller's Closing CalculationStatement, give written notice (the "ObjectionBUYER'S OBJECTION") to Seller, --------- setting forth the basis of its belief each Buyer's objection in reasonable detail and and, to the extent practicable, the adjustments to the Seller's Closing Calculation Statement which Buyer believes should be made. Failure to so notify Seller within such thirty (30) day period shall constitute acceptance and approval of the Closing Calculation. If Seller agrees that any change proposed by Buyer is appropriate, the change shall be made to the of Seller's Closing CalculationStatement. If any proposed change set forth in Buyer's Objection is disputed not accepted by Seller, then Seller shall within fifteen (15) days after receipt of Buyer's Objection give written notice to Buyer of Seller's objection to such change ("SELLER'S OBJECTION"). Failure to so notify Buyer within such fifteen (15) day period shall constitute acceptance and approval by Seller of Buyer's Objection. Seller's Closing Statement, as adjusted for any matter included in Buyer's Objection that is not disputed in Seller's Objection, shall be deemed conclusively accepted by Seller and Buyer, except in respect of those matters still in dispute in accordance herewith. For a period of thirty (30) days after Seller's Objection (the "NEGOTIATION PERIOD"), Seller and Buyer shall negotiate in good faith to resolve such dispute any remaining disputes as expeditiously as possible. If, after a period of thirty (30) days following the date on which Buyer delivers the ObjectionNegotiation Period, there remains any dispute as to the Closing Calculationdisputes still remain unresolved, then, the Palo Alto office of Ernst & Young or another major accounting firm jointly selected by Seller and Buyer and with no ties to either Buyer or Seller (the "Neutral Accounting Firm"), shall be engaged ----------------------- to resolve any remaining disputes. The Neutral Accounting Firm shall act as an arbitrator to determine only those issues still in dispute. The Neutral Accounting Firm's determination, based upon the calculation methodologies set forth in this Section 3.3, shall be made within thirty (30) days following the date on which the dispute is submitted, shall be set forth in a written statement delivered to Seller and Buyer, and shall be final, binding and conclusive. The fees and any expenses of the Neutral Accounting Firm shall be shared equally by Seller and Buyer.:

Closing Calculation. After No less than ten (10) Business Days prior to the applicable anticipated Undepreciated Assets Closing Date, Seller will cause to be prepared and delivered to Buyer: (i) an updated version of Schedule 1.01 (Permitted Liens) and Schedule 2.02, prepared and delivered in accordance with Section 2.13, reflecting all Undepreciated Assets that are to be Transferred to Buyer on the Undepreciated Assets Closing Date (as it pertains to the Undepreciated Assets Closing, the “Final Updated Undepreciated Assets Schedule”), which Final Updated Undepreciated Assets Schedule shall replace any prior Updated Schedule and, upon delivery and acceptance by Buyer pursuant to, and subject to the provisions of, Section 2.13, shall become a part of this Agreement and (ii) a statement, prepared in the same format as the Illustrative Estimated Signing Statement (the “Estimated Undepreciated Assets Closing Statement”), as of the expected Undepreciated Assets Closing StatementDate, ------------------- Buyer shall be entitled to full access with respect to the relevant Undepreciated Assets to be purchased at such Undepreciated Assets Closing, of (A) the undepreciated capital cost of each such Undepreciated Asset or category of Undepreciated Assets, derived from the financial books and records of Seller as of the end of the most recently completed calendar month thereof, and prepared by or in good faith in accordance with the Regulatory Methodologies, (B) the Undepreciated Assets Closing Assumed Liability Amount, including the components thereof for Seller to each item of Indebtedness and each Assumed Undepreciated Assets Liability, and (C) the extent required to review Undepreciated Assets Purchase Price for the calculation applicable Undepreciated Assets, as of the expected Undepreciated Assets Closing Adjustment set forth on the Closing Statement. If Buyer believes that the Closing Adjustment calculation (hereinafter the "Closing Calculation") has ------------------- not been properly Date, calculated in accordance with the calculation methodologies set forth in this Section 3.3, it shall, within thirty (30) days after receipt of the Closing Calculation, give written notice (the "Objection") to Seller, --------- setting forth the basis of its belief in reasonable detail and the adjustments to the Closing Calculation which Buyer believes should be made. Failure to so notify Seller shall constitute acceptance and approval of the Closing Calculation. If Seller agrees that any change proposed by Buyer is appropriate, the change shall be made to the Closing Calculation. If any proposed change is disputed by Seller, then Seller and Buyer shall negotiate in good faith to resolve such dispute as expeditiously as possible. If, after a period of thirty (30) days following the date on which Buyer delivers the Objection, there remains any dispute as to the Closing Calculation, then, the Palo Alto office of Ernst & Young or another major accounting firm jointly selected by Seller and Buyer and with no ties to either Buyer or Seller (the "Neutral Accounting Firm"2.09(c), shall be engaged ----------------------- to resolve any remaining disputes. The Neutral Accounting Firm shall act as an arbitrator to determine only those issues still in dispute. The Neutral Accounting Firm's determination, based upon the calculation methodologies set forth in this Section 3.3, shall be made within thirty (30) days following the date on which the dispute is submitted, shall be set forth in a written statement delivered to Seller and Buyer, and shall be final, binding and conclusive. The fees and any expenses of the Neutral Accounting Firm shall be shared equally by Seller and Buyer.

Closing Calculation. After delivery Within sixty (60) days following the Closing Date, Purchaser shall prepare and deliver to Seller a consolidated balance sheet of NextNet and its Subsidiaries as of the Closing Statement, ------------------- Buyer Date (the "POST-CLOSING BALANCE SHEET") setting forth the Closing Working Capital as of the Closing Date. The Post-Closing Balance Sheet shall be entitled to full access to the relevant books and records prepared by or for Seller to the extent required to review the calculation of Closing Adjustment set forth on the Closing Statement. If Buyer believes that the Closing Adjustment calculation (hereinafter the "Closing Calculation") has ------------------- not been properly calculated in accordance with GAAP consistently applied and applied on a basis consistent with the Financial Statements, and include an accrual for all unpaid Transaction Expenses. In connection therewith, from and after the Closing, Purchaser shall provide Seller with reasonable access to all NextNet records and work papers necessary to compute the Closing Working Capital. The calculation methodologies set forth in this Section 3.3, it shallof the Closing Working Capital as delivered to Seller shall be final and binding on the Parties unless, within thirty (30) days after receipt of the Closing Calculation, give written notice (the "Objection") delivery to Seller, --------- setting forth the basis of its belief in reasonable detail and the adjustments to the Closing Calculation which Buyer believes should be made. Failure to so notify Seller shall constitute acceptance deliver to Purchaser a Dispute Notice. After delivery of a Dispute Notice, Purchaser and approval of the Closing Calculation. If Seller agrees that any change proposed by Buyer is appropriate, the change shall be made to the Closing Calculation. If any proposed change is disputed by Seller, then Seller and Buyer shall promptly negotiate in good faith to resolve such dispute as expeditiously as possible. If, after a period of thirty (30) days following the date on which Buyer delivers the Objection, there remains any dispute as with respect to the Closing Calculationsubject of the Dispute Notice, thenand if they are unable to reach an agreement within ten (10) Business Days after delivery to Purchaser of the Dispute Notice, the Palo Alto office of Ernst & Young or another major accounting firm jointly selected by Seller and Buyer and with no ties to either Buyer or Seller (the "Neutral Accounting Firm"), dispute shall be engaged ----------------------- submitted to resolve any remaining disputesthe Independent Auditor. The Neutral Accounting Firm shall act as an arbitrator to determine only those issues still in dispute. The Neutral Accounting Firm's determination, based upon the calculation methodologies set forth in this Section 3.3, Independent Auditor shall be made directed to issue a final and binding decision within thirty (30) days following of submission of the date on which Dispute Notice, as to the dispute is submittedissues of disagreement referred to in the Dispute Notice and not resolved by the Parties. The calculation of the Closing Working Capital, as so adjusted by agreement or by the Independent Auditor (if required), shall be set forth in a written statement delivered final and binding on the Parties. "WORKING CAPITAL" shall mean the amount equal to Seller the total current assets (excluding cash and Buyer, and shall be final, binding and conclusive. The fees cash equivalents and any expenses deferred tax assets) of NextNet and its Subsidiaries less the Neutral Accounting Firm shall be shared equally by Seller total current liabilities (excluding the current portion of installment loan and Buyer.any Indebtedness for Borrowed Money and Transaction Expenses) of NextNet and its Subsidiaries, calculated in accordance with GAAP consistently applied and applied on a basis consistent with the Financial Statements. A sample calculation of Working Capital as of April 30, 2006 is attached hereto as Exhibit A.

Closing Calculation. After delivery of the Closing Statement, ------------------- Buyer The Seller shall be entitled to full access to the relevant books records and, upon execution and records delivery of a customary accountants' access letter, working papers prepared by or for Seller to the extent required to Company in connection with its review of the calculation of Closing Adjustment the Net Working Capital set forth on the Closing Statement. If Buyer the Seller believes that the Closing Adjustment Net Working Capital calculation (hereinafter the "Closing CalculationCLOSING CALCULATION") has ------------------- not been properly calculated in accordance with the calculation methodologies set forth in this Section 3.31.4, it shall, within thirty (30) days after its receipt of the Closing Calculation, give written notice (the "ObjectionSELLER'S OBJECTION") to Sellerthe Buyer, --------- setting forth the basis of its belief the Seller's Objection in reasonable detail and the adjustments to the Closing Calculation which Buyer the Seller believes should be made. Failure to so notify Seller the Buyer within such time frame shall constitute acceptance and approval of the Closing Calculation. If Seller the Buyer agrees that any change proposed by Buyer Seller is appropriate, the change shall be made to the Closing Calculation. If any the proposed change is disputed by Sellerthe Buyer, then the Buyer and Seller and Buyer shall negotiate in good faith to resolve such dispute as expeditiously as possible. If, after a period of thirty (30) ten business days following the date on which Buyer Seller delivers the Seller's Objection, there remains any dispute as adjustment to the Closing CalculationCalculation proposed by Seller remains disputed, thena nationally recognized "Big Five" accounting firm not employed by any of the Seller, the Palo Alto office Buyer or any of Ernst & Young or another major accounting firm jointly selected by Seller their affiliates and mutually acceptable to the Buyer and with no ties to either Buyer or the Seller (the "Neutral Accounting FirmNEUTRAL ACCOUNTING FIRM"), ) shall be engaged ----------------------- by the Buyer and the Seller to resolve any remaining disputes. The Neutral Accounting Firm shall act as an arbitrator to determine determine, based solely on presentations by the Seller and the Buyer, and not by independent review, only those issues still in dispute. The Neutral Accounting Firm's determination, determination shall be (i) based upon the calculation methodologies set forth in provisions of this Section 3.31.4, shall be (ii) made within thirty as promptly as practicable, (30iii) days following the date on which the dispute is submitted, shall be set forth in a written statement delivered to the Seller and the Buyer, and shall be (iv) final, binding and conclusiveconclusive on the parties. The fees and any expenses of the Neutral Accounting Firm shall be shared equally by the Seller and the Buyer. If a party does not comply with the procedures and time requirements contained herein or such other procedures or time requirements as the parties otherwise mutually agree upon in writing, the Neutral Accounting Firm shall render a decision based solely on the evidence it receives which was submitted in accordance with such procedures and time requirements.