(XXII)
THE TRUE AND COMPLETE ORIGINAL CORPORATE RECORDS
AND BUSINESS AND FINANCIAL RECORDS, EMPLOYMENT RECORDS AND AGREEMENTS OF XCEL
JAPAN AND ALL REGULATORY APPROVALS, CONSENTS AND AUTHORIZATIONS ISSUED TO XCEL
JAPAN AND ALL DOCUMENTS RELATED TO XCEL JAPAN'S CORPORATE STRUCTURE AND
BUSINESS;
(XXIII)
A SIDE LETTER AGREEMENT BY AND BETWEEN PARENT'S
SENIOR LENDER AND BUYER RELATING TO ACCESS TO ACCOUNTS RECEIVABLE IN THE
LOCKBOXES;
(XXIV)
COPIES OF ALL DOCUMENTS (IN FORM APPROVED BY BUYERS'
COUNSEL) FILED BY XCEL JAPAN WITH THE LEGAL AFFAIRS BUREAU RELATING TO THE
CONVERSION OF XCEL JAPAN TO A "NON-SHARE CERTIFICATE ISSUING COMPANY" AND A
RECEIPT FROM THE LEGAL AFFAIRS BUREAU ACKNOWLEDGING THAT IT HAS RECEIVED
THESE
DOCUMENTS FOR FILING; AND
(XXV)
AN AFFIDAVIT OF LOST CERTIFICATE WITH RESPECT TO THE
XCEL JAPAN SHARES WHICH PROVIDES INDEMNIFICATION TO BUYER; AND
23
(XXVI)
A CERTIFIED TRUE COPY OF COMMERCIAL REGISTER AND
CERTIFICATES OF TAX PAYMENT ("NOZEI-SHOMEISHO") REGARDING XCEL JAPAN.
(B)
BUYER WILL DELIVER TO SELLER:
(I)
THE CLOSING CASH CONSIDERATION
(INCLUDING THE PORTION PROVIDED BY STOCK BUYER) BY WIRE TRANSFER AT THE ACCOUNT
SPECIFIED IN WRITING TO BUYER;
(II)
THE ASSIGNMENT AND ASSUMPTION AGREEMENT,
EXECUTED BY BUYER;
(III)
THE INTELLECTUAL PROPERTY ASSIGNMENT,
EXECUTED BY BUYER;
(IV)
THE DOMAIN NAME ASSIGNMENT, EXECUTED BY BUYER;
(V)
THE TRANSITION SERVICES AGREEMENT, EXECUTED
BY BUYER; AND
(VI)
THE LEASE ASSIGNMENT, EXECUTED BY BUYER.
2.10
PURCHASE PRICE ADJUSTMENT.
THE PURCHASE PRICE
SHALL BE ADJUSTED AFTER THE CLOSING AS FOLLOWS:
(A)
CLOSING STATEMENT.
WITHIN FORTY-FIVE (45)
DAYS AFTER THE CLOSING DATE, SELLER SHALL DELIVER TO BUYERS A STATEMENT (THE
"CLOSING STATEMENT") SETTING FORTH (I) THE CLOSING NET ASSET VALUE, (II) THE
CLOSING NET BOOK VALUE, AND (III) THE SUM OF THE CLOSING NET ASSET VALUE AND THE
CLOSING NET BOOK VALUE (THE "CLOSING NET VALUE").
FOR ILLUSTRATION PURPOSES
ONLY, A COMPUTATION OF THE CLOSING NET BOOK VALUE UTILIZING THE FIGURES FROM THE
INTERIM BUSINESS BALANCE SHEETS IS ATTACHED HERETO AS EXHIBIT 2.10.
THE CLOSING
STATEMENT SHALL BECOME FINAL AND BINDING UPON BUYERS AND SELLER ON THE 15TH DAY
FOLLOWING DELIVERY THEREOF, UNLESS BUYER GIVES NOTICE OF DISAGREEMENT WITH THE
CLOSING STATEMENT (A "NOTICE OF DISAGREEMENT") TO SELLER PRIOR TO SUCH DATE.
ANY NOTICE OF DISAGREEMENT SHALL (I) SPECIFY IN REASONABLE DETAIL THE NATURE OF
ANY DISAGREEMENT SO ASSERTED AND (II) ONLY INCLUDE DISAGREEMENTS BASED ON
MATHEMATICAL ERRORS OR BASED ON THE CLOSING NET ASSET VALUE OR CLOSING NET BOOK
VALUE NOT BEING CALCULATED PURSUANT TO THIS SECTION 2.10, WHICH REQUIRES THAT
THE CALCULATIONS BE IN ACCORDANCE WITH GAAP.
IF A NOTICE OF DISAGREEMENT IS
RECEIVED BY SELLER IN A TIMELY MANNER, THEN THE CLOSING STATEMENT (AS REVISED IN
ACCORDANCE WITH THIS SENTENCE) SHALL BECOME FINAL AND BINDING UPON BUYERS AND
SELLER ON THE EARLIER OF (A) THE DATE BUYERS AND SELLER RESOLVE IN WRITING ANY
DIFFERENCES THEY HAVE WITH RESPECT TO THE MATTERS SPECIFIED IN THE NOTICE OF
DISAGREEMENT AND (B) THE DATE ANY DISPUTED MATTERS ARE FINALLY RESOLVED IN
WRITING BY THE ACCOUNTING FIRM.
DURING THE 30-DAY PERIOD FOLLOWING THE DELIVERY