Common use of Net Debt Clause in Contracts

Net Debt. The Purchaser shall assume or procure the reimbursement of the Closing Net Debt with effect from the Closing, notwithstanding the procedure set forth in Section 2.3(a) to (d) below. (a) Not less than four (4) Business Days prior to the Closing, the Seller shall deliver to the Purchaser and to the Purchaser’s Accountants a written statement showing the Seller’s calculation of the Closing Net Debt, prepared on the basis of the Accounting Principles and Schedule 2.3 and which in any event shall not exceed three hundred and fifteen million (315,000,000) Euros (the “Seller’s Statement”). If pursuant to Section 5.2 the Purchaser gives its prior written consent to the acquisition by the Company or any Subsidiary of an undertaking between the date of this Agreement and the Closing Date, the amount of any indebtedness contracted by the Company or that Subsidiary and the amount of any cash paid by the Company or that Subsidiary in each case for the purposes of that acquisition as approved by the Purchaser shall not be taken into account in the calculation of the Closing Net Debt in accordance with this Section 2.3. The Purchaser will have a period of thirty (30) Business Days from the Closing Date to review the Seller’s statement and to notify the Seller either that it agrees with the amount of the Closing Net Debt set out in the Seller’s Statement or that it does not agree with the amount of the Closing Net Debt set out in the Seller’s Statement in which case it shall provide reasonable details of the basis for such disagreement. For the purposes of this review, the Seller shall procure that the Purchaser and the Purchaser’s Accountants shall have access to the accounts of and other relevant financial information relating to the Company and the Subsidiaries, as well as to the relevant working papers of the Seller, the Seller’s Accountants and the Auditors. The Closing Net Debt agreed by the parties or otherwise determined in accordance with this Section 2.3 is referred to herein as the “Final Net Debt”. (b) If the Purchaser does not dispute the Closing Net Debt set out in the Seller’s Statement within thirty (30) Business Days from the Closing Date, the Seller’s calculation of the Closing Net Debt shall be the Final Net Debt. (c) If the Purchaser disputes the computation of the Closing Net Debt set out in the Seller’s Statement within the above mentioned thirty (30) Business Day period and shall have notified the Seller of such fact in writing, the parties (each assisted by its Accountants if it so requires) shall meet to attempt to reach a final agreement in good faith on the Closing Net Debt within a period of ten (10) Business Days from the date of the response from the Purchaser. If the parties reach an agreement within that period on the amount of the Final Net Debt this shall be paid in accordance with sub-Section (d) below. If the parties fail to reach an agreement within that period on the amount of the Final Net Debt, this shall be determined (but within the range of the Seller’s and the Purchaser’s respective determinations of the Closing Net Debt) by Ernst & Young, or, if Ernst & Young is unable or unwilling to act, an expert being a member of an international audit firm appointed by the President of the Paris Commercial Court at the request of the most diligent party, in each case acting as an independent expert (the “Expert”) in accordance with the provisions of article 1843-4 of the French Civil Code. The Expert’s determination shall be provided simultaneously by the Expert to the Seller and the Purchaser in a single report within fifteen (15) Business Days of the date on which he shall have been requested to provide his determination. This report shall be final and binding upon both the Purchaser and the Seller in the absence of manifest error. The parties shall promptly make all relevant information available to the Expert in order for him to make such determination. The fees and expenses of the Expert shall be borne by the Purchaser and the Seller in equal shares. (d) If the amount of the Final Net Debt exceeds the Closing Net Debt then the Seller shall pay the difference to the Purchaser, or if the Final Net Debt is less than the Closing Net Debt the Purchaser shall pay the difference to the Seller. Any such payment shall be made within five (5) Business Days of the determination of the Final Net Debt in accordance with the provisions of this Section 2.3.

Net Debt. The Purchaser shall assume or procure the reimbursement of the Closing Net Debt with effect from the Closing, notwithstanding the procedure set forth in Section 2.3(a) to (d) below. (a) Not less As soon as practicable, but in no event later than four ninety (490) Business Days prior to the Closing, the Seller shall deliver to the Purchaser and to the Purchaser’s Accountants a written statement showing the Seller’s calculation of the Closing Net Debt, prepared on the basis of the Accounting Principles and Schedule 2.3 and which in any event shall not exceed three hundred and fifteen million (315,000,000) Euros (the “Seller’s Statement”). If pursuant to Section 5.2 the Purchaser gives its prior written consent to the acquisition by the Company or any Subsidiary of an undertaking between the date of this Agreement and days following the Closing Date, the amount Newco shall, on a basis consistent with GAAP prepare and deliver to each of any indebtedness contracted by the Company or that Subsidiary SBC and the amount of any cash paid by the Company or that Subsidiary in each case for the purposes of that acquisition as approved by the Purchaser shall not be taken into account in BellSouth a statement showing the calculation of the Closing Net Debt in accordance with this Section 2.3(the "Calculation"). The Purchaser will have a period of thirty (30) Business Days from Calculation shall separately set forth the Closing Date to review the Seller’s statement and to notify the Seller either that it agrees with the amount of the SBC Closing Net Debt set out in the Seller’s Statement or that it does not agree with the amount of the and BellSouth Closing Net Debt set out in the Seller’s Statement in which case it shall provide reasonable details of the basis for such disagreement. For the purposes of this review, the Seller shall procure that the Purchaser and the Purchaser’s Accountants shall have access to the accounts of and other relevant financial information relating to the Company and the Subsidiaries, as well as to the relevant working papers of the Seller, the Seller’s Accountants and the Auditors. The Closing Net Debt agreed by the parties or otherwise determined in accordance with this Section 2.3 is referred to herein as the “Final Net Debt”. (b) If After receipt of the Purchaser does not dispute Calculation, SBC and BellSouth shall each have 60 days to review the Closing Net Debt set out Calculation. Newco, SBC and BellSouth shall each provide the others and their authorized representatives reasonable access during normal business hours and without significant disruption to their respective business, to (i) all of their and their Subsidiaries' respective books, records and employees having relevant information concerning the Calculation and (ii) the accountants who assisted Newco in preparing the Calculation and such accountants' relevant supporting workpapers. Unless SBC or BellSouth delivers written notice to Newco and to SBC or BellSouth, as the case may be, on or prior to the 60th day after Newco's delivery of the Calculation stating that SBC or BellSouth, as the case may be, has objections to the Calculation and describing any such objections with reasonable particularity, SBC and BellSouth shall be deemed to have accepted and agreed to the Calculation. In addition, any item included in the Seller’s Statement within thirty (30) Business Days from the Closing Date, the Seller’s calculation of the Closing Net Debt Calculation which is not objected to by either SBC or BellSouth shall be deemed to be accepted by SBC and BellSouth (the Final Net Debt"Resolved Items") and any amounts included within a Resolved Item shall be deemed to be final, binding and conclusive. If SBC or BellSouth notifies Newco of its objections to the Calculation, SBC, BellSouth and Newco shall, within 10 days (or such longer period as the parties may agree) following such notice (the "Resolution Period"), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive. (c) If Any amounts remaining in dispute at the Purchaser disputes the computation conclusion of the Closing Net Debt set out in the Seller’s Statement within the above mentioned thirty Resolution Period (30) Business Day period and shall have notified the Seller of such fact in writing, the parties (each assisted by its Accountants if it so requires"Unresolved Items") shall meet be submitted to attempt Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ (such firm being referred to reach a final agreement in good faith on as the Closing Net Debt within a period of ten (10"CPA Firm") Business Days from the date of the response from the Purchaser. If the parties reach an agreement within that period on the amount of the Final Net Debt this shall be paid in accordance with sub-Section (d) below. If the parties fail to reach an agreement within that period on the amount of the Final Net Debt, this shall be determined (but within the range of the Seller’s and the Purchaser’s respective determinations of the Closing Net Debt) by Ernst & Young, or, if Ernst & Young is unable or unwilling to act, an expert being a member of an international audit such firm appointed by the President of the Paris Commercial Court at the request of the most diligent party, in each case acting as an independent expert (the “Expert”) in accordance with the provisions of article 1843-4 of the French Civil Code. The Expert’s determination shall be provided simultaneously by the Expert to the Seller and the Purchaser in a single report within fifteen (15) Business Days of the date on which he shall have been requested to provide his determination. This report shall be final and binding upon both the Purchaser and the Seller in the absence of manifest error. The parties shall promptly make all relevant information available to the Expert in order for him to make such determination. The fees and expenses of the Expert shall be borne by the Purchaser and the Seller in equal shares.unable or (d) If the amount of the Final Net Debt exceeds the Closing Net Debt then the Seller shall pay the difference to the Purchaser, or if the Final Net Debt is less than the Closing Net Debt the Purchaser shall pay the difference to the Seller. Any such payment shall be made within Within five (5) Business Days of following either (i) an agreement by SBC, BellSouth and Newco as to the Calculation or (ii) the CPA Firm's determination of the Final Net Debt in accordance with Calculation, the provisions of this Section 2.3.following payments shall be made:

Net Debt. The Purchaser shall assume or procure the reimbursement of the Closing Net Debt with effect from the Closing, notwithstanding the procedure set forth in Section 2.3(a) to (d) below. (a) Not less As soon as practicable, but in no event later than four ninety (490) Business Days prior to the Closing, the Seller shall deliver to the Purchaser and to the Purchaser’s Accountants a written statement showing the Seller’s calculation of the Closing Net Debt, prepared on the basis of the Accounting Principles and Schedule 2.3 and which in any event shall not exceed three hundred and fifteen million (315,000,000) Euros (the “Seller’s Statement”). If pursuant to Section 5.2 the Purchaser gives its prior written consent to the acquisition by the Company or any Subsidiary of an undertaking between the date of this Agreement and days following the Closing Date, the amount Newco shall, on a basis consistent with GAAP prepare and deliver to each of any indebtedness contracted by the Company or that Subsidiary SBC and the amount of any cash paid by the Company or that Subsidiary in each case for the purposes of that acquisition as approved by the Purchaser shall not be taken into account in BellSouth a statement showing the calculation of the Closing Net Debt in accordance with this Section 2.3(the "Calculation"). The Purchaser will have a period of thirty (30) Business Days from Calculation shall separately set forth the Closing Date to review the Seller’s statement and to notify the Seller either that it agrees with the amount of the SBC Closing Net Debt set out in the Seller’s Statement or that it does not agree with the amount of the and BellSouth Closing Net Debt set out in the Seller’s Statement in which case it shall provide reasonable details of the basis for such disagreement. For the purposes of this review, the Seller shall procure that the Purchaser and the Purchaser’s Accountants shall have access to the accounts of and other relevant financial information relating to the Company and the Subsidiaries, as well as to the relevant working papers of the Seller, the Seller’s Accountants and the Auditors. The Closing Net Debt agreed by the parties or otherwise determined in accordance with this Section 2.3 is referred to herein as the “Final Net Debt”. (b) If After receipt of the Purchaser does not dispute Calculation, SBC and BellSouth shall each have 60 days to review the Closing Net Debt set out Calculation. Newco, SBC and BellSouth shall each provide the others and their authorized representatives reasonable access during normal business hours and without significant disruption to their respective business, to (i) all of their and their Subsidiaries' respective books, records and employees having relevant information concerning the Calculation and (ii) the accountants who assisted Newco in preparing the Calculation and such accountants' relevant supporting workpapers. Unless SBC or BellSouth delivers written notice to Newco and to SBC or BellSouth, as the case may be, on or prior to the 60th day after Newco's delivery of the Calculation stating that SBC or BellSouth, as the case may be, has objections to the Calculation and describing any such objections with reasonable particularity, SBC and BellSouth shall be deemed to have accepted and agreed to the Calculation. In addition, any item included in the Seller’s Statement within thirty (30) Business Days from the Closing Date, the Seller’s calculation of the Closing Net Debt Calculation which is not objected to by either SBC or BellSouth shall be deemed to be accepted by SBC and BellSouth (the Final Net Debt"Resolved Items") and any amounts included within a Resolved Item shall be deemed to be final, binding and conclusive. If SBC or BellSouth notifies Newco of its objections to the Calculation, SBC, BellSouth and Newco shall, within 10 days (or such longer period as the parties may agree) following such notice (the "Resolution Period"), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive. (c) If Any amounts remaining in dispute at the Purchaser disputes the computation conclusion of the Closing Net Debt set out in the Seller’s Statement within the above mentioned thirty Resolution Period (30) Business Day period and shall have notified the Seller of such fact in writing, the parties (each assisted by its Accountants if it so requires"Unresolved Items") shall meet be submitted to attempt Arthur Andersen LLP (such firm being referred to reach a final agreement in good faith on as the Closing Net Debt within a period of ten (10"CPA Firm") Business Days from the date of the response from the Purchaser. If the parties reach an agreement within that period on the amount of the Final Net Debt this or, ▇▇ ▇u▇▇ ▇▇▇▇ shall be paid in accordance with sub-Section (d) below. If the parties fail to reach an agreement within that period on the amount of the Final Net Debt, this shall be determined (but within the range of the Seller’s and the Purchaser’s respective determinations of the Closing Net Debt) by Ernst & Young, or, if Ernst & Young is unable or unwilling to actserve in such capacity or if the parties shall otherwise mutually agree, such other nationally recognized firm of independent accountants mutually agreed by SBC, BellSouth and Newco (and, in such case, such firm shall be deemed to be the CPA Firm), within 10 days after the expiration of the Resolution Period. Each Party agrees to execute, if requested by the CPA Firm, an expert being a member of an international audit firm appointed by the President of the Paris Commercial Court at the request of the most diligent party, in each case acting as an independent expert (the “Expert”) in accordance engagement letter with the provisions of article 1843-4 of the French Civil CodeCPA Firm containing reasonable terms. The Expert’s determination shall be provided simultaneously by the Expert to the Seller and the Purchaser in a single report within fifteen (15) Business Days of the date on which he shall have been requested to provide his determination. This report shall be final and binding upon both the Purchaser and the Seller in the absence of manifest error. The parties shall promptly make all relevant information available to the Expert in order for him to make such determination. The All fees and expenses of relating to the Expert work, if any, to be performed by the CPA Firm shall be borne by all of the Purchaser parties equally. The CPA Firm shall act as an arbitrator and not as an expert in determining the Unresolved Items. The CPA Firm's determination of the Unresolved Items shall be made within 30 days after the submission of the Unresolved Items to the CPA Firm, and, together with a calculation of the Closing Working Capital and the Seller Closing Long Term Liabilities based upon the amount of Resolved Items and the CPA Firm's determinations of the Unresolved Items, shall be set forth in equal sharesa written statement delivered to SBC, BellSouth and Newco by the CPA Firm and shall be final, binding and conclusive on the Parties and Newco for all purposes. (d) If Within five (5) Business Days following either (i) an agreement by SBC, BellSouth and Newco as to the amount Calculation or (ii) the CPA Firm's determination of the Final Net Debt exceeds Calculation, the Closing Net Debt then the Seller shall pay the difference to the Purchaser, or if the Final Net Debt is less than the Closing Net Debt the Purchaser shall pay the difference to the Seller. Any such payment following payments shall be made (or, as to amounts payable to BellSouth, if the SBC Debt Threshold (as defined in the Newco LLC Agreement) shall not have been met at such time, within five (5) Business Days after the satisfaction of the determination of the Final Net SBC Debt in accordance with the provisions of this Section 2.3.Threshold):