Inventory Adjustment (a) Within 30 days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the "Closing Inventory Statement") setting forth the type and value, as of the close of business on the day immediately preceding the Closing Date, of the inventory of the Business, which statement shall be derived from a physical taking of such inventory as of such date and shall value inventory on the basis of the lower of cost or market value utilizing a first-in, first-out method in a manner consistent with Sellers' and the Companies' past practices and the standards and principles used in the preparation of the Unaudited Consolidated Statement of Net Investment Assets of the Business as of September 25, 2004 and shall otherwise be prepared in a manner consistent with Sellers' and the Companies' past practices with respect to perpetual inventory records; provided, that all amounts denominated in Canadian dollars that are part of the calculation of the value of inventory pursuant to this Section 2.05 shall be converted into U.S. dollars using the Closing Date Exchange Rate. Buyer and its representatives shall have such opportunity as Buyer reasonably deems appropriate to observe the taking and reconciliation of such inventory (which may begin prior to the Closing Date) in connection with the preparation of the Closing Inventory Statement. Buyer shall provide Sellers and their accountants, upon reasonable notice, such access to the books and records, to any other information, including working papers of Buyer's accountants, and to any employees of Buyer and its affiliates, in each case as may be reasonably necessary for Sellers to take such physical inventory, prepare the Closing Inventory Statement, respond to the Buyer's Inventory Objection (as defined in Section 2.05(b)) and prepare materials for presentation to the Arbitrator in connection with the matters contemplated by Section 2.05(c). If necessary, Buyer shall, after Closing, also provide or cause to be provided to Sellers and their designees such access as such persons may reasonably request to all facilities at which inventory of the Business is located in order to conduct such physical inventory. For the avoidance of doubt, the inventory of the Business to be valued pursuant to this Section 2.05 consists of the Inventory and all inventory of the Companies.
Estimated Closing Statement Not less than two (2) Business Days prior to the Closing Date, the Seller shall prepare and deliver to the Buyer a statement (the “Estimated Closing Statement”), certified in writing by an executive officer of the Seller, setting forth, in reasonable detail, (i) the Seller’s good faith calculation, together with reasonably detailed supporting documentation, of the estimated Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”) and the components thereof; (ii) the Estimated Working Capital Increase or Estimated Working Capital Decrease, as the case may be; and (iii) the resulting calculation of the Purchase Price (the resulting amount, the “Estimated Purchase Price”), in each case calculated pursuant to the Accounting Principles. The Seller and the Owner, during the period from the delivery of the Estimated Closing Statement through the Closing Date, shall, and shall cause their respective managers, officers, employees, accountants, and other relevant advisors to, provide the Buyer (and its auditors, advisors, counsel, and other representatives) reasonable access to the books and records, outside accounting firm, working papers (subject to the execution of customary access letters), personnel, and facilities of the Seller in order to complete their review of the Estimated Closing Statement and the calculations set forth therein, and the Seller shall consider in good faith any comments made by the Buyer to the Estimated Closing Statement. The Buyer’s failure to make any comment regarding, or to dispute any amount included in, the Estimated Closing Statement shall not limit, or have any effect on, the Buyer’s rights pursuant to Section 2.05(b) to conduct a review of the Estimated Closing Date Net Working Capital, the Estimated Working Capital Increase or Estimated Working Capital Decrease, as the case may be, and the resulting calculation of the Purchase Price. The Seller and the Owner shall cooperate with the Buyer’s review of the Estimated Closing Statement and the Buyer and the Seller shall negotiate in good faith prior to the Closing to resolve any reasonable objection the Buyer may have to the estimates or calculations contained therein.
Closing Statement (a) At least five (5) business days prior to the Closing Date, the Company shall submit to Buyer a written statement of estimated Current Assets and Current Liabilities as of the last day of the month immediately preceding the Closing Date (the "Estimated Closing Statement") containing the Company's good faith estimate of the Net Working Capital Amount (the "Estimated Net Working Capital Amount"), which shall reflect the items required to be set forth in, and be prepared in a manner consistent with the preparation of, the Closing Statement, in each case in accordance with Section 4.6(b); provided, however, that for purposes of the Estimated Net Working Capital Amount, the parties hereto agree that 50% of the amount of Fuel Sensor Damages (x) actually expended by Parent or the Company from March 1, 2011 through the last day of the month immediately preceding the Closing Date and (y) accrued as current liabilities on the Estimated Closing Statement, shall be added as a credit to the estimated Net Working Capital Amount set forth on the Estimated Closing Statement. Commencing with the Company's delivery of the Estimated Closing Statement to Buyer, Buyer shall have reasonable access to the books and records and personnel of the Company and the opportunity to consult with the Company for purposes of confirming or disputing the Estimated Net Working Capital Amount. If Buyer shall disagree, in good faith, with any item set forth in the Estimated Closing Statement or used to determine the Estimated Net Working Capital Amount, then Buyer and the Company shall work, in good faith, to reach agreement on such disputed items and the amounts as agreed to by Buyer and the Company shall constitute the Estimated Net Working Capital Amount. Notwithstanding the foregoing, Buyer's agreement with the Estimated Net Working Capital Amount (or any item set forth in the Estimated Closing Statement or used to determine the Estimated Net Working Capital Amount) shall not foreclose, prevent, limit or preclude any rights or remedy of Buyer set forth in this Agreement. If the Estimated Net Working Capital Amount is less than the Target Net Working Capital Amount, the amount of the Closing Payment to be paid by Buyer pursuant to Section 4.1(b)(i) shall be reduced by an amount equal to the difference between the Estimated Net Working Capital Amount and the Target Net Working Capital Amount. If the Estimated Net Working Capital Amount is more than the Target Net Working Capital Amount, the amount of the Closing Payment to be paid by Buyer pursuant to Section 4.1(b)(i) shall be increased by an amount equal to the difference between the Estimated Net Working Capital Amount and the Target Net Working Capital Amount.
Closing Date Balance Sheet The Buyer shall cause the Company to provide Sellers' Accountants with full and complete access to the books and records of the Company and to otherwise cooperate with and assist Sellers' Accountants in the preparation of the Closing Date Balance Sheet. Unless Buyer, within thirty (30) days after delivery of the Closing Date Balance Sheet, notifies Sellers' Representative in writing that Buyer objects to the determination of the Closing Date Stockholders' Equity, as reflected on the Closing Date Balance Sheet, and specifies the basis for such objection, which objection shall not include any dispute relating to or arising out of the Environmental Remediation Accrual or the Deferred Compensation Accrual, and the amount or amounts in dispute, the Closing Date Balance Sheet shall become final and binding upon the parties for purposes of this Agreement as of the day following the end of such thirty (30) day period, which shall be the Closing Date Balance Sheet Determination Date. If Buyer notifies Sellers' Representative of its objection, and if Sellers and Buyer, together with their respective advisors, are unable to resolve any such objections within fifteen (15) days after any such notice has been given, the dispute shall be submitted to the Accounting Firm, which shall be instructed to resolve the dispute expeditiously. The Accounting Firm shall make a final binding determination as to the matter or matters in dispute, and the date of such determination shall be the Closing Date Balance Sheet Determination Date. Buyer agrees to cooperate, and agrees to cause the Company to cooperate, with Sellers (and Sellers' authorized representatives), and Sellers agree to cooperate with Buyer and the Company (and their respective authorized representatives), in order to resolve any and all matters in dispute as soon as reasonably possible. The Sellers shall pay the fees, costs and expenses of the Sellers Accountants. Buyer shall pay the fees, costs and expenses of the Accounting Firm, unless the difference between (x) the proposed Closing Date Stockholders' Equity included on the Closing Date Balance Sheet delivered by the Sellers and (y) the determination by the Accounting Firm of the Closing Date Stockholders' Equity results in a reduction to the Purchase Price under Section 3.3.2 hereof, in which case the fees, costs and expenses of the Accounting Firm shall be paid by the Sellers.
Final Settlement Statement No later than 120 Days after the Closing Date Seller will deliver to Buyer the final settlement statement (the “Final Settlement Statement”) setting forth the actual amounts of Adjustments and the resulting Adjusted Purchase Price, together with associated back-up documentation. As soon as reasonably practicable, but in no event later than 30 Days after Buyer receives the Final Settlement Statement, Buyer may deliver to Seller a written report containing any changes that Buyer proposes to be made to such statement. If Buyer fails to timely deliver the written report to Seller containing changes Buyer proposes to be made to the Final Settlement Statement, the statement as delivered by Seller will be deemed to be correct and will be final and binding on the Parties and not subject to further audit or arbitration. As soon as reasonably practicable, but in no event later than 15 Days after Seller receives Buyer’s written report, the Parties shall meet and undertake to agree on the final adjustments to the Final Settlement Statement. If the Parties fail to agree on the final adjustments within such 15-Day period, either Party may submit the disputed items to the Accounting Referee for resolution. The Parties shall direct the Accounting Referee to resolve the disputes within 20 Days after having the relevant materials submitted for review. The decision of the Accounting Referee will be binding on and non-appealable by the Parties. The fees and expenses associated with the Accounting Referee will be borne equally by the Parties. Any amounts owed by one Party to the other as a result of the Final Settlement Statement, together with interest on such amount from (and including) the Closing Date to (and excluding) the date of payment at the Prime Rate, will be paid within 5 Business Days after the date when the amounts are agreed upon by the Parties or the Parties receive a decision of the Accounting Referee, and the Adjustments included in the Final Settlement Statement will be final and binding between the Parties and not subject to further audit or arbitration.
Final Closing Statement Within ninety (90) days following the Closing Date, Parent shall deliver to the Holder Representative a statement (the “Closing Statement” and, in its final and binding form as determined below, the “Final Closing Statement”) setting forth the Closing Consideration and each component thereof as of immediately prior to the Closing, including final determinations as to the amounts of (A) the Company Cash, (B) the Funded Debt and (C) the Closing Net Working Capital. The Final Closing Statement and the components thereof shall be prepared in accordance with the Agreed Accounting Principles. The Holder Representative shall cooperate as reasonably requested in connection with the preparation of the Closing Statement. During the thirty (30)-day period immediately following the Holder Representative’s receipt of the Closing Statement, the Holder Representative shall be permitted to review Parent’s working papers related to the preparation of the Closing Statement and determination of the Closing Consideration and the components thereof. The Closing Statement shall become final and binding upon the parties upon the earlier of (x) thirty (30) days following the Holder Representative’s receipt thereof, unless the Holder Representative shall give written notice of its disagreement (a “Notice of Disagreement”) to Parent prior to such date and (y) the date that the Holder Representative notifies Parent of its acceptance thereof. Any Notice of Disagreement shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted. The Closing Statement shall become final and binding upon the resolution in writing of all disagreements the parties may have with respect thereto (whether by the written agreement of the parties or pursuant to the arbitration provisions set forth below). During the thirty (30) days following delivery of a Notice of Disagreement, Parent and the Holder Representative shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. Following delivery of a Notice of Disagreement, Parent and its agents and Representatives shall be permitted to review the Holder Representative’s and its Representatives’ working papers relating to the Notice of Disagreement. If, at the end of the thirty (30)-day period referred to above, the matters in dispute have not been fully resolved, then the parties shall submit to Ernst & Young LLP (or such other mutually agreed independent accountants of nationally recognized standing) (any such accounting firm, the “Accounting Firm”) for review and resolution of all matters (but only such matters) which remain in dispute, and the Accounting Firm shall make a final determination of the Closing Consideration and the components thereof to the extent such amounts are in dispute, in accordance with the guidelines and procedures set forth in this Agreement. The parties will reasonably cooperate with the Accounting Firm during the term of its engagement. The Accounting Firm shall be provided reasonable access to the books, records and other relevant information of the Company, Parent and the Holder Representative to the extent necessary to calculate the Closing Consideration. In resolving any matters in dispute, the Accounting Firm may not assign a value to any item in dispute greater than the greatest value for such item assigned by Parent in the Closing Statement, on the one hand, or the Holder Representative in the Notice of Disagreement, on the other hand, or less than the smallest value for such item assigned by Parent in the Closing Statement, on the one hand, or the Holder Representative in the Notice of Disagreement, on the other hand. The Accounting Firm’s determination shall be based solely on presentations by Parent and the Holder Representative which are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review). Absent fraud committed by the Accounting Firm or manifest error (as to which Parent and the Holder Representative mutually agree), the Closing Statement and the determination of the Closing Consideration and the components thereof shall become final and binding on the parties on the date the Accounting Firm delivers its final resolution in writing to the parties (which the Accounting Firm shall be instructed to deliver not more than forty-five (45) days following submission of such disputed matters). The Accounting Firm shall act as an expert and not as an arbitrator to determine solely the matters in dispute based solely on the submissions and responses of Parent, on the one hand, and the Holder Representative, on the other hand. The Accounting Firm shall allocate its costs and expenses between Parent and the Holder Representative, on behalf of the Holders, based upon the percentage of the contested amount submitted to the Accounting Firm that is ultimately awarded to Parent, on the one hand, or the Holder Representative on behalf of the Holders, on the other hand, such that Parent bears a percentage of such costs and expenses equal to the percentage of the contested amount awarded to the Holders and the Holders bear a percentage of such costs and expenses equal to the percentage of the contested amount awarded to Parent (such amount payable by the Holder Representative on behalf of the Holders to be deducted from the Purchase Price Adjustment Holdback and retained by Parent in accordance with Section 4.1(c)(ii)).
Payments of Post-Closing Adjustment Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated as set forth below, shall (A) be due (x) within five (5) Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause (v) above; and (B) be paid by wire transfer of immediately available funds to such account(s) as is directed by Buyer or Sellers, as the case may be.
Calculation Any figure or percentage referred to in this Agreement shall be carried to seven decimal places.
