Common use of Closing Date Statements Clause in Contracts

Closing Date Statements. 8.1 The Purchase Price shall be determined on the basis of a pro-forma consolidated balance sheet of the Business as of the Closing Date, based on the Closing Date Statements and in accordance with Schedules 7.3(a), 7.3(b) and 7.3(c). On the basis of the Closing Date Statements the Closing Date Certificate shall be prepared, in each case to be determined as set forth in Section 7.3. The Closing Date Statements shall not include any accruals for accounting, legal or advisory fees relating to the transactions contemplated by this Agreement. 8.2 The Initial Closing Statement and the Closing Date Statements shall be prepared: a. in accordance with U.S. GAAP as consistently applied in the financial statements described in Section 10.4, including consistent methods, policies, bases, conventions, rules and practices, including estimation techniques set forth by Seller; b. all assets and liabilities denominated in foreign currencies shall be translated to US Dollars as of the Measurement Time using the European Central Bank reference exchange rates fixed and published on the European Central Bank website at approximately 2:00PM CET (or, in the case of Mexico, the official Banco de Mexico reference exchange rate) (i) on the last Business Day prior to initial delivery of the Initial Closing Statement for the Initial Closing Statement and (ii) as of the last Business Day prior to the last day of Seller’s fiscal month end in the month of the Closing for the Closing Date Statements, as consistently applied within the financial statements described in Section 10.4. 8.3 Net Working Capital, Cash or Financial Debt related to Sold Entities or JV Majority Participations shall be excluded from Estimated Net Working Capital, Cash or Financial Debt to the extent a Sold Entity does not transfer as of the Closing Date. 8.4 There shall not be any double counting of items within or between Net Working Capital, Cash, Financial Debt and such that Net Working Capital, Cash and Financial Debt shall be calculated on an internally consistent basis and in accordance with Schedules 7.3(a), 7.3(b) and 7.3(c). 8.5 The Closing Date Statements and the Closing Date Certificate shall be prepared by Purchaser. Purchaser shall deliver the Closing Date Statements and the Closing Date Certificate to Seller within sixty (60) days after the Closing Date. 8.6 Purchaser shall fully co-operate with and assist, and shall cause the Purchaser’s Affiliates to fully co-operate with and assist, Seller and Seller’s advisor in analyzing the Closing Date Statements, in particular by providing assistance, documentation and information, including, without limitation, access to the relevant Business Records, information reasonably required with respect to the consolidation and any other files and documents (provided reasonable notice has been given and the access or assistance is to be given during normal office hours), which is reasonably relevant for reviewing the Closing Date Statements. To the extent that Seller consents in written form to the Closing Date Statements and the Closing Date Certificate or does not object within thirty (30) days after the receipt of the Closing Date Statements and the Closing Date Certificate by providing Purchaser with an Objection Notice, the Closing Date Statements and the Closing Date Certificate shall become final and binding on the Parties. Any items not disputed in the Objection Notice shall be final and binding on the Parties. 8.7 If and to the extent Seller has provided Purchaser with an Objection Notice in accordance with Section 8.6 the Parties shall (in conjunction with their advisors and accountants) meet and discuss the disputed matters on a senior management level which will include for the Seller the Vice President Corporate Controlling of the Seller’s Group and for the Purchaser the Senior Vice President Finance, Powertrain in order to reach an agreement on adjustments (if any) to be made to the Closing Date Statements and/or the Closing Date Certificate which are acceptable to the Parties to render such documents in its final form. 8.8 If and to the extent the Parties are unable to reach such agreement within sixty (60) Business Days after the receipt by Purchaser of an Objection Notice, either Party shall be entitled to present the matter to a Neutral Auditor (Schiedsgutachter). If the Parties cannot agree on the Neutral Auditor within twenty (20) Business Days after the respective request for such appointment, either Party shall be entitled to request the Institute of Chartered Accountants (▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇.), ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, to appoint the Neutral Auditor, provided that the partner of the Neutral Auditor who shall be instructed is permanently located at an office of such firm which is not working for Seller or Purchaser or any of their Affiliates at the time of the appointment. The Neutral Auditor shall decide only on the specific items in dispute in accordance with the principles set out in Section 8.2 above. In respect of the issues in dispute, the decisions of the Neutral Auditor shall remain within the positions taken by the Parties. The Neutral Auditor shall give the Parties adequate opportunity to present their views in written form and at a hearing or hearings to be held in the presence of Seller and Purchaser. The Parties shall co-operate with the Neutral Auditor and promptly respond to any information requests or other requests for assistance by the Neutral Auditor. The Neutral Auditor shall give reasons for its decision and on the specific items in dispute between the Parties. The Closing Date Statements and the Closing Date Certificate shall be deemed to be modified to reflect the decision of the Neutral Auditor, and the Closing Date Statements and the Closing Date Certificate as determined by the Neutral Auditor shall be final and binding on the Parties pursuant to Section 319 of the German Civil Code (Bürgerliches Gesetzbuch), except for cases of fraud or manifest error. The Neutral Auditor shall be instructed to render its decision within forty (40) Business Days after its appointment. 8.9 The fees and expenses of the Neutral Auditor shall be borne by the Parties in proportion to their respective success and defeat as determined by the Neutral Auditor.

Closing Date Statements. 8.1 The Purchase Price shall be determined on the basis of a pro-forma consolidated balance sheet of the Business as of the Closing Date, based on the Closing Date Statements and in accordance with Schedules 7.3(a), 7.3(b) and 7.3(c). On the basis of the Closing Date Statements the Closing Date Certificate shall be prepared, in each case to be determined as set forth in Section 7.3. The Closing Date Statements shall not include any accruals for accounting, legal or advisory fees relating to the transactions contemplated by this Agreement. 8.2 The Initial Closing Statement and the Closing Date Statements shall be prepared: a. in accordance with U.S. GAAP as consistently applied in the financial statements described in Section 10.4, including consistent methods, policies, bases, conventions, rules and practices, including estimation techniques set forth by Seller; b. all assets and liabilities denominated in foreign currencies shall be translated to US Dollars as of the Measurement Time using the European Central Bank reference exchange rates fixed and published on the European Central Bank website at approximately 2:00PM CET (or, in the case of Mexico, the official Banco de Mexico reference exchange rate) (i) on the last Business Day prior to initial delivery of the Initial Closing Statement for the Initial Closing Statement and (ii) as of the last Business Day prior to the last day of Seller’s fiscal month end in the month of the Closing for the Closing Date Statements, as consistently applied within the financial statements described in Section 10.4. 8.3 Net Working Capital, Cash or Financial Debt related to Sold Entities or JV Majority Participations shall be excluded from Estimated Net Working Capital, Cash or Financial Debt to the extent a Sold Entity does not transfer as of the Closing Date. 8.4 There shall not be any double counting of items within or between Net Working Capital, Cash, Financial Debt and such that Net Working Capital, Cash and Financial Debt shall be calculated on an internally consistent basis and in accordance with Schedules 7.3(a), 7.3(b) and 7.3(c). 8.5 The Closing Date Statements and the Closing Date Certificate shall be prepared by Purchaser. Purchaser shall deliver the Closing Date Statements and the Closing Date Certificate to Seller within sixty (60) days after the Closing Date.. 48/114 8.6 Purchaser shall fully co-operate with and assist, and shall cause the Purchaser’s Affiliates to fully co-operate with and assist, Seller and Seller’s advisor in analyzing the Closing Date Statements, in particular by providing assistance, documentation and information, including, without limitation, access to the relevant Business Records, information reasonably required with respect to the consolidation and any other files and documents (provided reasonable notice has been given and the access or assistance is to be given during normal office hours), which is reasonably relevant for reviewing the Closing Date Statements. To the extent that Seller consents in written form to the Closing Date Statements and the Closing Date Certificate or does not object within thirty (30) days after the receipt of the Closing Date Statements and the Closing Date Certificate by providing Purchaser with an Objection Notice, the Closing Date Statements and the Closing Date Certificate shall become final and binding on the Parties. Any items not disputed in the Objection Notice shall be final and binding on the Parties. 8.7 If and to the extent Seller has provided Purchaser with an Objection Notice in accordance with Section 8.6 the Parties shall (in conjunction with their advisors and accountants) meet and discuss the disputed matters on a senior management level which will include for the Seller the Vice President Corporate Controlling of the Seller’s Group and for the Purchaser the Senior Vice President Finance, Powertrain in order to reach an agreement on adjustments (if any) to be made to the Closing Date Statements and/or the Closing Date Certificate which are acceptable to the Parties to render such documents in its final form. 8.8 If and to the extent the Parties are unable to reach such agreement within sixty (60) Business Days after the receipt by Purchaser of an Objection Notice, either Party shall be entitled to present the matter to a Neutral Auditor (Schiedsgutachter). If the Parties cannot agree on the Neutral Auditor within twenty (20) Business Days after the respective request for such appointment, either Party shall be entitled to request the Institute of Chartered Accountants (▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇.), ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, to appoint the Neutral Auditor, provided that the partner of the Neutral Auditor who shall be instructed is permanently located at an office of such firm which is not working for Seller or Purchaser or any of their Affiliates at the time of the appointment. The Neutral Auditor shall decide only on the specific items in dispute in accordance with the principles set out in Section 8.2 above. In respect of the issues in dispute, the decisions of the Neutral Auditor shall remain within the positions taken by the Parties. The Neutral Auditor shall give the Parties adequate opportunity to present their views in written form and at a hearing or hearings to be held in the presence of Seller and Purchaser. The Parties shall co-operate with the Neutral Auditor and promptly respond to any information requests or other requests for assistance by the Neutral Auditor. The Neutral Auditor shall give reasons for its decision and on the specific items in dispute between the Parties. The Closing Date Statements and the Closing Date Certificate shall be deemed to be modified to reflect the decision of the Neutral Auditor, and the Closing Date Statements and the Closing Date Certificate as determined by the Neutral Auditor shall be final and binding on the Parties pursuant to Section 319 of the German Civil Code (Bürgerliches Gesetzbuch), except for cases of fraud or manifest error. The Neutral Auditor shall be instructed to render its decision within forty (40) Business Days after its appointment.. 49/114 8.9 The fees and expenses of the Neutral Auditor shall be borne by the Parties in proportion to their respective success and defeat as determined by the Neutral Auditor.