calculation of the
Closing Net Asset Value becomes binding and conclusive on the parties pursuant
to Section 2.11, Sellers or Buyer, as the case may be, shall make the wire
transfer payment provided for in this Section 2.10.
For the purposes of this
Section 2.10, the "Estimated Closing Net Asset Value" will equal the amount of
the Estimated Closing Net Asset Value that was paid at Closing.
2.11
ADJUSTMENT PROCEDURE
(A)
BUYER SHALL PREPARE A CLOSING BALANCE SHEET
("CLOSING BALANCE SHEET") OF THE BUSINESS AS OF THE CLOSING DATE APPLYING THE
AGREED ACCOUNTING PRINCIPLES.
BUYER SHALL THEN DETERMINE THE NET ASSET VALUE AS
OF THE EFFECTIVE TIME (THE "CLOSING NET ASSET VALUE") BASED UPON THE CLOSING
BALANCE SHEET.
BUYER SHALL DELIVER THE CLOSING BALANCE SHEET AND ITS
DETERMINATION OF THE CLOSING NET ASSET VALUE TO SELLERS WITHIN FORTY-FIVE (45)
DAYS FOLLOWING THE CLOSING DATE.
THE CLOSING BALANCE SHEET (I) WILL NOT ACCOUNT
FOR OR REFLECT IN ANY MANNER ANY ASSETS THAT DO NOT CONSTITUTE ASSETS AND (II)
WILL ACCOUNT FOR AND REFLECT ALL ASSUMED LIABILITIES THAT ARE REQUIRED TO BE
ACCOUNTED FOR OR REFLECTED ON SUCH CLOSING BALANCE SHEET APPLYING THE AGREED
ACCOUNTING PRINCIPLES.
SELLERS AND THEIR INDEPENDENT AUDITORS AND OTHER
REPRESENTATIVES SHALL HAVE THE RIGHT TO REVIEW AND VERIFY THE CLOSING BALANCE
SHEET AND DETERMINATION OF THE CLOSING NET ASSET VALUE WHEN RECEIVED AND BUYER
SHALL PROVIDE SELLERS WITH ACCESS TO ALL (I) WORK PAPERS AND WRITTEN PROCEDURES
USED TO PREPARE THE CLOSING BALANCE SHEET AND THE DETERMINATION OF CLOSING NET
ASSET VALUE AND (II) BOOKS AND RECORDS AND PERSONNEL TO THE EXTENT NECESSARY TO
ENABLE SELLERS AND THEIR INDEPENDENT AUDITORS AND OTHER REPRESENTATIVES TO
CONDUCT A FULL REVIEW OF THE CLOSING BALANCE SHEET AND FOR THEM TO FULLY
EVALUATE BUYER'S CALCULATION OF THE CLOSING NET ASSET VALUE.
BY WAY OF
CLARIFICATION AND AMPLIFICATION WITH RESPECT TO BUYER'S PREPARATION OF THE
CLOSING BALANCE SHEET (AND TO ENSURE THAT IT IS PREPARED ON THE SAME BASIS AND
APPLYING THE AGREED ACCOUNTING PRINCIPLES AS WAS DONE BY SELLERS IN PREPARING
THE INITIAL BALANCE SHEET), SPECIAL MENTION IS MADE OF, AND BUYER (A)
UNDERSTANDS AND ACCEPTS AS BINDING WITH RESPECT TO ITS PREPARATION OF THE
CLOSING BALANCE SHEET THE SELLERS' JUDGMENTS AS TO VALUATION AND RESERVE MATTERS
PERTAINING TO SUCH ACCOUNTS IN THE INITIAL BALANCE SHEET, (B) ACCEPTS AND AGREES
WITH SELLERS' APPLICATION OF THE AGREED ACCOUNTING PRINCIPLES INCLUDING THE
VALUATIONS OF CURRENT ASSETS IN RESPECT THEREOF, AND (C) WILL NOT CONTEST OR
OTHERWISE PROPOSE ANY CHANGE TO THE RESERVES ESTABLISHED IN CONNECTION WITH ANY
ASSET AND VALUATION THEREOF IN THE INITIAL BALANCE SHEET EXCEPT TO THE EXTENT
THAT ANY FURTHER RESERVES AS TO SUCH ASSET AND VALUATION THEREOF ARE CLEARLY
REQUIRED
23
BY APPLICATION OF THE AGREED ACCOUNTING PRINCIPLES AS A RESULT OF THE PASSAGE OF
TIME OR CHANGES IN CONDITIONS, FACTS OR CIRCUMSTANCES SINCE THE DATE OF THE
INITIAL BALANCE SHEET.
(B)
FOR PURPOSES OF THE CLOSING BALANCE SHEET,
NO EARLIER THAN SIXTY (60) DAYS PRIOR TO THE CLOSING