Common use of Post-Closing Payment Clause in Contracts

Post-Closing Payment. (a) In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater than the Closing Payment, Buyer shall pay Seller an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting of (i) a balance sheet of the Company as of the Effective Time, prepared in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5. In furtherance of such preparation, Parent will make reasonably available the employees of Parent and its Affiliates to

Post-Closing Payment. (a) In Within 10 business days after the event that delivery of the Final certified inventory report by the inventory service, Debtors shall deliver to Purchasers a statement of the aggregate amount of the Cost Value of all Saleable Inventory included in the Inventory Taking determined in accordance with Section 2.4 plus ---- the Cost Value of all Saleable Inventory subject to Gross Rings at each Store between the Closing Date and the Inventory Date at such Store (the "Closing ------- Merchandise Inventory"), together with Debtors' good faith determination of the --------------------- Post-Closing Payment. During the period immediately following the Purchaser's receipt of such Closing Merchandise Inventory and until the Post-Closing Payment as is finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater than 2.5, the representatives and agents designated by the Purchaser shall be permitted to review Debtors' books and records and working papers related to the preparation of the Closing Merchandise Inventory and determination of the Post-Closing Payment, Buyer . The Closing Merchandise Inventory and Debtors' determination of the Post-Closing Payment shall pay Seller an amount in cash equal to become final and binding upon the difference within parties five (5) Business Days days after the final Purchaser's receipt thereof (the "Initial Settlement Date"), unless the ----------------------- Purchaser gives written notice to Debtors of its disagreement ("Notice of --------- Disagreement") prior to such date. Any Notice of Disagreement shall specify in ------------ reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement is received by Debtors, then the Closing Merchandise Inventory and the determination thereof. In of the event that the Final Post-Closing Payment (as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount revised in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall accordance with clause (i) be made by wire transfer of immediately available funds and or (ii) include interest below) shall become final and binding upon the parties on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting earliest of (i) a balance sheet of the Company as of date the Effective Time, prepared parties hereto resolve in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect writing any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation differences they have with respect to the calculation matters specified in the Notice of Disagreement or (ii) the amounts set forth thereon; date all matters in dispute are finally resolved in writing by the Court. During the 10 days following delivery of a Notice of Disagreement, Debtors and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared Purchaser shall seek in good faithfaith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. During such period, (y) is derived from a representative appointed by the Books Debtors shall be permitted to review the Purchaser's working papers relating to the Notice of Disagreement. At the end of such 10-day period, Purchaser and Recordsthe Debtors shall submit to the Court for review and resolution all matters which remain in dispute which were included in the Notice of Disagreement, and (z) was prepared the Court shall make a final determination of Closing Merchandise Inventory and the Post-Closing Payment. The Closing Merchandise Inventory and the Post-Closing Payment as determined in accordance with the Specified Accounting Principles and this Section 2.52.5 shall become final and binding on the parties on the date the Court delivers its final resolution to the parties. In furtherance of such preparation, Parent will make reasonably available Purchaser and the employees of Parent Debtors shall each bear their own fees and its Affiliates toexpenses in connection with the Court's resolution.

Post-Closing Payment. To the extent Seller has fully satisfied the conditions to all of the “Post-Closing Payment” (aas defined below) In within the event thirty (30) day period immediately following Closing (the “Post-Closing Payment Period”), Seller will provide Purchase with one written notice (the “Post-Closing Notice”) setting forth such satisfaction, accompanied by any documentation to be delivered to Purchaser pursuant to this subparagraph 3.4(b). The Post-Closing Notice must be received by Purchaser within the thirty (30) day period immediately following Closing. If Purchaser is satisfied that the Final Post-Closing Notice will fulfill the Post- Closing Payment conditions set forth below, Purchase will pay to Seller by wire transfer the Post-Closing Payment within ten (10) days of receipt of Post-Closing Notice. The amount of the Post-Closing Payment to be paid to Seller under this Agreement will be One Million U.S. Dollars ($1,000,000). If Seller has not, prior to the end of the Post-Closing Payment Period, fully satisfied all of the conditions to payment of the Post-Closing Payment as finally determined pursuant further set forth in paragraphs 3.4(b)(i) through (ii), Seller will have no right to subsections (b) receive, and (c) Purchaser will have no obligations to pay any portion of this Section 2.5 is greater than the Post-Closing Payment. For purposes of the limitation of liability of each party as set forth in paragraph 8.1, Buyer shall pay Seller an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting of (i) a balance sheet of purchase price” will equal the Company as of the Effective Time, prepared in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) total of the amount set forth in paragraph 3.4(a) together with the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Post-Closing Indebtedness and Transaction Expenses each as of the Payments (if any) paid to Seller. The “Post-Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time Payment” and the Closing) and (iii) the items of adjustment corresponding conditions to the Base Price Purchaser’s obligation to arrive at the make such Post-Closing Payment pursuant to Section 2.4(b) based on the Closing Statement Payments are as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5. In furtherance of such preparation, Parent will make reasonably available the employees of Parent and its Affiliates tofollowing:

Post-Closing Payment. Within 10 days after the last Inventory -------------------- Date, Merchant shall deliver to Agent a statement of the aggregate amount of the Cost Value of all Saleable Inventory included in the Inventory Taking determined in accordance with Sections 5.1, 5.2 and 5.3 plus the Cost Value of ---- all Saleable Inventory subject to Gross Rings at each Store between the Sale Commencement Date and the Inventory Date at such Store (a) In the event that "Closing Merchandise ------------------- Inventory"), together with Merchant's good faith determination of the Final Post- --------- Closing Payment. During the period immediately following the Agent's receipt of such Closing Merchandise Inventory and until the Post-Closing Payment as is finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater than 5.4, the representatives and agents designated by Agent shall be permitted to review Merchant's books and records and working papers related to the preparation of the Closing Merchandise Inventory and determination of the Post-Closing Payment, Buyer shall pay Seller an amount in cash equal to . The Closing Merchandise Inventory and Merchant's determination of the difference within five (5) Business Days after the final determination thereof. In the event that the Final Post-Closing Payment as finally determined pursuant shall become final and binding upon the parties five days after Agent's receipt thereof (the "Initial Settlement Date"), unless Agent gives written notice to subsections Merchant of its ----------------------- disagreement (b"Notice of Disagreement") and (c) prior to such date. Any Notice of this Section 2.5 ---------------------- Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement is less than received by Merchant, then the Closing Payment, Seller shall, Merchandise Inventory and Parent shall cause Seller to, pay Buyer an amount the determination of the Post-Closing Payment (as revised in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall accordance with clause (i) be made by wire transfer of immediately available funds and or (ii) include interest below) shall become final and binding upon the parties on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting earliest of (i) the date the parties hereto resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date all matters in dispute are finally resolved in writing by the Bankruptcy Court. During the 10 days following delivery of a balance sheet Notice of Disagreement, Agent and the Company as Merchant 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. During such period, a representative appointed by Merchant shall be permitted to review the Effective TimeAgent's working papers relating to the Notice of Disagreement. At the end of such 10-day period, prepared Agent and the Merchant shall submit to the Bankruptcy Court for review and resolution all matters which remain in dispute which were included in the Notice of Disagreement, and the Bankruptcy Court shall make a final determination of Closing Merchandise Inventory and the Post-Closing Payment in accordance with the Specified Accounting Principles guidelines and taking into account the transactions contemplated by procedures set forth in this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”)Agreement. The Closing Statement shall be (i) in Merchandise Inventory and the same format Post-Closing Payment as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared determined in accordance with the Specified Accounting Principles and this Section 2.55.4 shall become final and binding on the parties on the date the Bankruptcy Court delivers its final resolution to the parties. In furtherance of such preparation, Parent will make reasonably available Agent and Merchant shall each bear their own fees and expenses in connection with the employees of Parent and its Affiliates toBankruptcy Court's resolution.

Post-Closing Payment. Within 20 days after WIS delivers the -------------------- final inventory report to Merchant and Agent, Merchant and Agent shall jointly reconcile such report and use their respective good faith efforts to agree upon the aggregate Retail Price of all Merchandise included in the Inventory Taking determined in accordance with Sections 5.1, 5.2 and 5.3 (a) In the event that "Closing ------- Merchandise Inventory"), together with an agreed upon determination of the Final Post- --------------------- Closing Payment. The Closing Merchandise Inventory and the determination of the Post-Closing Payment as finally determined pursuant to subsections (b) shall become final and (c) of this Section 2.5 is greater than binding upon the Closing Payment, Buyer shall pay Seller an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest parties on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting earliest of (i) the date the parties hereto agree in writing with respect thereto or (ii) the date all matters in dispute are finally resolved in writing by the Bankruptcy Court. If Agent and Merchant and unable to agree upon the Closing Merchandise Inventory within such 20-day period or such additional periods to which the parties may agree, Agent and the Merchant shall submit to the Bankruptcy Court for review and resolution all matters which are dispute, and the Bankruptcy Court shall make a balance sheet final determination of Closing Merchandise Inventory and the Company as of the Effective Time, prepared Post-Closing Payment in accordance with the Specified Accounting Principles guidelines and taking into account the transactions contemplated by procedures set forth in this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”)Agreement. The Closing Statement shall be (i) in Merchandise Inventory and the same format Post-Closing Payment as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared determined in accordance with the Specified Accounting Principles and this Section 2.55.5 shall become final and binding on the parties on the date the Bankruptcy Court delivers its final resolution to the parties. In furtherance of such preparation, Parent will make reasonably available Agent and Merchant shall each bear their own fees and expenses in connection with the employees of Parent Bankruptcy Court's resolution. The "Settlement Date" shall be as applicable (a) the date the --------------- parties agree in writing to the Closing Merchandise Inventory and its Affiliates tothe Post- Closing Payment or (b) the date the matters in dispute are finally resolved by the Bankruptcy Court.