CLOSING DATE ("ESTIMATED EXPANSION
EXPENDITURES"), AND (3) THE CASH AND CASH EQUIVALENTS OF THE COMPANIES
("ESTIMATED CASH"); AND (B) AN ITEMIZED LIST (INCLUDING LENDER, AMOUNT
OUTSTANDING AND WHETHER SUCH INDEBTEDNESS IS PAID INDEBTEDNESS OR REMAINING
INDEBTEDNESS) OF ALL INDEBTEDNESS OF THE COMPANIES TO BE OUTSTANDING AS OF THE
CLOSING DATE (THE "CLOSING INDEBTEDNESS").
SELLER SHALL ALSO DELIVER TO BUYER,
SIMULTANEOUSLY WITH SUCH CERTIFICATE, PAYOFF LETTERS EXECUTED BY EACH OF THE
LENDERS OR OTHER FINANCING SOURCES WITH RESPECT TO SUCH CLOSING INDEBTEDNESS IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO BUYER (THE "PAYOFF LETTERS").
EACH PAYOFF LETTER SHALL CONTAIN THE PAYOFF AMOUNT, INCLUDING PRINCIPAL, ACCRUED
BUT UNPAID INTEREST, FEES, PREPAYMENT COSTS OR PENALTIES, MAKE-WHOLE PREMIUMS OR
SIMILAR COSTS (INCLUDING A PER DIEM AMOUNT OR CALCULATION THROUGH THE CLOSING
DATE) OF THE CLOSING INDEBTEDNESS TO WHICH IT RELATES AND SHALL AUTHORIZE SELLER
AND BUYER, FOLLOWING THE PAYMENT IN FULL OF SUCH CLOSING INDEBTEDNESS, TO FILE
ANY FINANCING STATEMENTS OR TAKE ANY OTHER ACTIONS NECESSARY TO TERMINATE ANY
OUTSTANDING LIENS RELATING TO SUCH CLOSING INDEBTEDNESS.
THE AGGREGATE AMOUNT
NECESSARY TO REPAY ALL THE INDEBTEDNESS OF THE COMPANIES AS OF THE CLOSING DATE
AS SET FORTH IN THE PAYOFF LETTERS IS REFERRED TO HEREIN AS THE "COMPANY
INDEBTEDNESS PAYOFF AMOUNT".
(III)
THE CLOSING DATE PURCHASE PRICE SHALL EQUAL THE INITIAL PURCHASE
PRICE, INCREASED OR DECREASED, AS APPROPRIATE, BY THE AMOUNT OF THE ESTIMATED
NET WORKING CAPITAL ADJUSTMENT, AND INCREASED BY THE AMOUNT OF ESTIMATED
EXPANSION EXPENDITURES AND THE AMOUNT OF ESTIMATED CASH.
(IV)
AT THE CLOSING, BUYER SHALL PAY, OR CAUSE TO BE PAID ON BEHALF OF
THE COMPANIES, TO THE PERSONS NAMED IN THE PAYOFF LETTERS ASSOCIATED WITH THE
PAID INDEBTEDNESS, AN AGGREGATE DOLLAR AMOUNT BASED ON THE PAYOFF AMOUNTS SET
FORTH IN SUCH PAYOFF LETTERS, SUCH PAYMENT TO BE MADE BY BUYER BY WIRE TRANSFER
OF IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNT DESIGNATED BY EACH SUCH PERSON, OR
AS OTHERWISE INSTRUCTED BY EACH PERSON, IN THE PAYOFF LETTERS.
AT THE CLOSING,
BUYER MAY, BUT SHALL NOT BE OBLIGATED TO, PAY, OR CAUSE TO BE PAID, TO THE
PERSONS NAMED IN THE PAYOFF LETTERS ASSOCIATED WITH THE REMAINING INDEBTEDNESS,
AN AGGREGATE DOLLAR AMOUNT BASED ON THE PAYOFF LETTERS IN ORDER TO EXTINGUISH
THE REMAINING INDEBTEDNESS.
(B)
ADJUSTMENT METHODOLOGY.
THE PURCHASE PRICE ADJUSTMENTS HEREUNDER
SHALL BE CALCULATED AS OF THE CLOSING DATE, WITHOUT GIVING EFFECT TO ANY OF THE
TRANSACTIONS HEREUNDER, IN ACCORDANCE WITH GAAP OR AS OTHERWISE SPECIFIED
HEREIN.
10
(C)
FINAL PURCHASE PRICE ADJUSTMENT AND PROCEDURES.
(I)
WITHIN NINETY (90) DAYS AFTER THE CLOSING DATE, SELLER SHALL
PREPARE AND DELIVER TO BUYER A STATEMENT (THE "ADJUSTMENT STATEMENT") WHICH
SHALL SET FORTH SELLER'S CALCULATION, AS OF THE CLOSING DATE, OF (A) NET WORKING
CAPITAL ("CLOSING NET WORKING CAPITAL"), (B) AMOUNTS ACTUALLY EXPENDED BY THE
COMPANIES IN CONNECTION WITH THE EXPANSION DURING THE PERIOD FROM JANUARY 1,
2007 UNTIL THE CLOSING IN ACCORDANCE WITH SECTION 6.1 HEREOF, BUT ONLY TO THE
EXTENT SUCH AMOUNTS ARE NOT INCLUDED IN NET WORKING CAPITAL AS OF THE