Common use of Acceptance of Statements; Dispute Procedures Clause in Contracts

Acceptance of Statements; Dispute Procedures. The Closing Balance Sheet, the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon) and the Closing Cash Statement delivered by Buyer to Seller shall be conclusive and binding upon the Parties unless Seller, within 20 days after delivery to Seller of the Closing Cash Statement, Closing Balance Sheet and the Closing Working Capital Statement, that, in each case, complies with Section 2.2.2 notifies Buyer in writing that Seller disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. During such 20 day period and the pendency of any such disputes, (A) the Buyer and the Company will provide the Seller and its Representatives with reasonable access to (x) any documents, schedules, work papers or other information used in the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (y) employees of the Company and Buyer responsible for the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (B) the Seller will provide Buyer with reasonable access to any documents, schedules, work papers or other information used in the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement. The Parent Parties shall in good faith attempt to resolve any such dispute and, if the Parent Parties so resolve all such disputes, the Closing Cash Statement, Closing Balance Sheet and the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon), as amended to the extent necessary to reflect the resolution of such disputes and the agreement thereto of the Parent Parties, shall be conclusive and binding on the Parties. If the Parties do not reach an agreement in resolving the dispute within 20 days after notice is given by Seller to Buyer pursuant to the second preceding sentence, the Parties shall submit the dispute to an internationally recognized accounting firm mutually acceptable to Seller and Buyer (the “Arbiter”) for resolution. As promptly as reasonably practicable, but no later than 20 days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Buyer and Seller, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the amount of Cash at the Closing and the Closing Working Capital which shall be conclusive and binding on the Parties. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.2 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either Parent Party or less than the smallest value for such items claimed by either Parent Party. The fees, costs and expenses of the Arbiter (the “Arbiter’s Costs”) shall be allocated to and borne by Buyer and Seller based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, should the items in dispute total in amount to $1,000 and the Arbiter awards $600 in favor of Seller’s position, 60% of the Arbiter’s Costs of its review would be borne by Buyer and 40% of the Arbiter’s Costs would be borne by Seller.

Acceptance of Statements; Dispute Procedures. The Closing Balance Sheet, Maximum Purchased Note Purchase Price included in the Closing Working Capital Estimated Valuation Statement (and the computation of Closing Working Capital indicated thereonpursuant to Section 3.4(b) and the Closing Cash Statement delivered by Buyer to Seller shall be conclusive and binding upon the Parties parties. Each of the Financial Information Statements (and the computations indicated thereon) delivered to Starwood by Vistana shall be conclusive and binding upon the parties unless SellerStarwood, within 20 thirty (30) days after delivery to Seller Starwood of the Closing Cash such Financial Information Statement, Closing Balance Sheet and the Closing Working Capital Statement, that, in each case, complies with Section 2.2.2 notifies Buyer Vistana in writing that Seller Starwood disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. During such 20 day the thirty (30)-day period and following receipt by Starwood of the pendency Financial Information Statements, Vistana shall, promptly following a request of any such disputesStarwood, (A) the Buyer and the Company will provide the Seller and its Representatives Starwood with reasonable access to (x) any copies of all documents, work papers, schedules, work papers memoranda, and records used by or other information prepared by Vistana or its Representatives in preparing the Financial Information Statements, and Vistana shall, and shall cause its Representatives to, cooperate reasonably with Starwood in connection herewith. The Distribution Date Valuation Statement (and any computations indicated thereon) delivered to Vistana by KPMG shall be conclusive and binding upon the parties unless Vistana, within thirty (30) days after delivery to Vistana of such Distribution Date Valuation Statement, notifies Starwood in writing that Vistana disputes any of the amounts set forth therein (which disputes, to the extent relating to amounts set forth in the Distribution Date Valuation Statement, for the avoidance of doubt, shall not apply to amounts with respect to line items on Annex C identified as not subject to adjustment or the accounting methods, practices, principles, policies or procedures, classifications, judgments or valuation and estimation methodologies that were used in the preparation of Annex C, but shall only apply to amounts with respect to line items on Annex C that are subject to adjustment), specifying the Closing Cash nature of the dispute and the basis therefor. During the thirty (30)-day period following receipt by Vistana of the Distribution Date Valuation Statement, Closing Balance Sheet and Closing Working Capital Statement and (y) employees Starwood shall, promptly following a request of the Company and Buyer responsible for the preparation Vistana, provide Vistana with, or cause KPMG to provide Vistana with, copies of the Closing Cash Statementall documents, Closing Balance Sheet and Closing Working Capital Statement and (B) the Seller will provide Buyer with reasonable access to any documentswork papers, schedules, work papers memoranda, and records used by or other information used prepared by KPMG or its Representatives in preparing the preparation of the Closing Cash Distribution Date Valuation Statement, Closing Balance Sheet and Closing Working Capital StatementStarwood shall, and shall instruct KPMG and its Representatives to, cooperate reasonably with Vistana in connection therewith. The Parent Parties shall in good faith attempt to resolve any such dispute and, if the Parent Parties so resolve all such disputes, then the Closing Cash Statement, Closing Balance Sheet Financial Information Statements (and the Closing Working Capital computations indicated thereon) and the Distribution Date Valuation Statement (and the computation of Closing Working Capital any computations indicated thereon), as applicable and, in each case, as amended to the extent necessary to reflect the resolution of such disputes and the agreement thereto of the Parent Partiesany disputes, shall be conclusive and binding on the Parties. If the Parties do not reach an agreement in resolving all disputes with respect to the dispute Financial Information Statements within 20 forty-five (45) days after notice is given to Vistana by Seller to Buyer Starwood pursuant to the second preceding sentencesentence of this Section 3.4(d) or if the Parties do not reach agreement in resolving all disputes with respect to the Distribution Date Valuation Statement within forty-five (45) days after notice is given to Starwood by Vistana pursuant to the fourth sentence of this Section 3.4(d), the Parties shall submit the dispute applicable dispute(s) to an internationally BDO USA, LP or another mutually satisfactory nationally recognized independent accounting firm mutually acceptable to Seller and Buyer (the “Arbiter”) for resolution. As promptly as reasonably practicablePromptly, but no later than 20 thirty (30) days after acceptance of its appointment as Arbiterby the Arbiter with respect to any such dispute, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Buyer Vistana and SellerStarwood (which, for the avoidance of doubt, may include submissions by KPMG), and not by independent review, only those issues in dispute (which, for the avoidance of doubt, shall not include any amounts with respect to line items on Annex C identified as not subject to adjustment or the accounting methods, practices, principles, policies or procedures, classifications, judgments or valuation and estimation methodologies that were used in the preparation of Annex C, but shall only include amounts with respect to line items on Annex C that are subject to adjustment), and shall render a written report as to the resolution of the dispute and the resulting computation of the amount of Cash at the Closing and the Closing Working Capital Financial Information Statements and/or Distribution Date Valuation Statement, as applicable, which shall be conclusive and binding on the Parties. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.2 3.4(d) and (y) may not assign a value to any item greater than the greatest value for such items claimed by either Parent Party party or less than the smallest value for such items claimed by either Parent Partyparty. The fees, costs and expenses of the Arbiter (the “Arbiter’s Costs”) shall be allocated to and borne by Buyer Vistana and Seller Starwood based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, should the items in dispute total in amount to $1,000 and the Arbiter awards $600 in favor of SellerStarwood’s position, 60% of the Arbiter’s Costs costs of its review would be borne by Buyer Vistana and 40% of the Arbiter’s Costs costs would be borne by SellerStarwood.

Acceptance of Statements; Dispute Procedures. The Closing Balance Sheet, the Closing Working Capital Date Net Free Cash Amount Statement (and the computation of Closing Working Capital indicated thereon) and the Closing Cash Date Unpaid Company Transaction Expenses Statement delivered by Buyer Parent to Seller the Holder Representative shall be conclusive and binding upon the Parties parties unless Sellerthe Holder Representative, within 20 thirty (30) days after delivery to Seller receipt by the Holder Representative of the Closing Date Net Free Cash Statement, Closing Balance Sheet Amount Statement and the Closing Working Capital Date Unpaid Company Transaction Expenses Statement, that, in each case, complies with Section 2.2.2 notifies Buyer Parent in writing that Seller the Holder Representative disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. During such 20 thirty (30) day period and period, the pendency of any such disputes, (A) the Buyer and the Company will provide the Seller Holder Representative and its Representatives with advisors, designees and/or agents shall be given reasonable access to (x) any documentsthe books, schedules, work papers or records and other information used in data of Parent and the preparation Surviving Corporation necessary for the purpose of the reviewing Parent’s Closing Date Net Free Cash Statement, Closing Balance Sheet Amount Statement and Closing Working Capital Date Unpaid Company Transaction Expenses Statement and (y) employees of the Company and Buyer responsible for the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (B) the Seller will provide Buyer with reasonable access to any documents, schedules, work papers or other information used the personnel of Parent and the Surviving Corporation to consult as to the procedures and determinations made by the Surviving Corporation in the preparation of the Parent’s Closing Date Net Free Cash Statement, Closing Balance Sheet Amount Statement and Closing Working Capital Date Unpaid Company Transaction Expenses Statement. The Parent Parties parties shall in good faith attempt to resolve any such dispute and, if the Parent Parties parties so resolve all such disputes, the Closing Date Net Free Cash Statement, Closing Balance Sheet Amount Statement and the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon)Date Unpaid Company Transaction Expenses Statement, as amended to the extent necessary to reflect the resolution of such disputes and the agreement thereto of the Parent Partiesdispute, shall be conclusive and binding on the Partiesparties. If the Parties parties do not reach an agreement in resolving the dispute within 20 twenty (20) days after notice is given by Seller the Holder Representative to Buyer Parent pursuant to the second preceding sentencefirst sentence of this Section 3.7(b)(iii) (or such longer period as the parties may agree), the Parties parties shall submit the dispute to an internationally a nationally recognized independent accounting firm which is not the regular accounting firm for any of the parties and which is mutually acceptable agreeable to Seller and Buyer all of the parties (the “Arbiter”) for resolution. As promptly as reasonably practicable, but no later than 20 days after acceptance If the parties cannot agree on the selection of its appointment an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such firm, and such appointment shall be conclusive and binding on the parties. The parties shall cooperate fully with the Arbiter, including providing the Arbitrator with access to, and copies of, all books and records that the Arbiter reasonably requests. The determination of the Arbiter shall determine be conclusive and binding upon the parties. The parties shall request that the Arbiter use its commercially reasonable efforts to reach a resolution (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Buyer ) of the dispute as to the computation of the Actual Closing Date Net Free Cash Amount and/or the Actual Unpaid Company Transactions Expenses and Seller, and not by independent review, only those issues in dispute and shall render a written report as with respect to such findings within thirty (30) calendar days after the submission to the resolution of the dispute and the resulting computation of the amount of Cash at the Closing and the Closing Working Capital which shall be conclusive and binding on the PartiesArbiter. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.2 3.7 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either Parent Party party or less than the smallest value for such items claimed by either Parent Partyparty. The Subject to the provisions set forth further below in this Section 3.7(b)(iii), the fees, costs and expenses of the Arbiter (the “Arbiter’s Costs”) shall be allocated to and borne by Buyer Parent and Seller the Equityholders based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, should the items in dispute total in amount to one thousand dollars ($1,000 1,000) and the Arbiter awards Six Hundred dollars ($600 600) in favor of Seller’s the Equityholders’ position, sixty percent (60% %) of the Arbiter’s Costs costs of its review would be borne by Buyer Xxxxxx and forty percent (40% %) of the Arbiter’s Costs costs would be borne by Sellerthe Equityholders. Parent shall pay for any and all fees, costs and expenses of the Arbiter that are to be borne by the Equityholders in accordance with the preceding two sentences, and Parent shall be entitled to reimbursement of any such fees, costs and expenses paid by Parent that are to be borne by the Equityholders by exercising a right of set-off against a portion of each Milestone Payment that would thereafter otherwise be payable to the Equityholders pursuant to this Agreement equal to the amount of such fees, costs and expenses. Notwithstanding anything express or implied in the foregoing provisions of this Section 3.7(b)(iii) to the contrary, (i) neither the Holder Representative nor the Equityholders shall have any personal liability or obligation to make payment of such fees, costs and expenses to be borne by the Equityholders, and (ii) the sole recourse and remedy of Parent to obtain reimbursement of any such fees, costs and expenses to be borne by the Equityholders and paid by Parent pursuant to this Section 3.7(b)(iii) shall be by exercising a right of set-off against a portion of each Milestone Payment that would thereafter otherwise be payable to the Equityholders pursuant to this Agreement pursuant to the foregoing provisions of this Section 3.7(b)(iii).

Acceptance of Statements; Dispute Procedures. The Closing Balance Sheet, the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon), the Closing Indebtedness Statement (and the computation of Closing Indebtedness indicated thereon) and the Closing Cash Statement (and the computation of Closing Cash indicated thereon) delivered by Buyer Purchaser to Seller the Sellers' Representative shall be conclusive and binding upon the Parties parties unless Sellerthe Sellers' Representative, within 20 days Business Days after delivery to Seller the Sellers' Representative of the Closing Cash StatementBalance Sheet, Closing Balance Sheet and the Closing Working Capital Statement, thatthe Closing Indebtedness Statement and the Closing Cash Statement, in each case, complies with Section 2.2.2 notifies Buyer Purchaser in writing that Seller the Sellers' Representative disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. During such 20 day period and the pendency of any such disputes, (A) the Buyer and the Company will provide the Seller and its Representatives with reasonable access to (x) any documents, schedules, work papers or other information used in the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (y) employees of the Company and Buyer responsible for the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (B) the Seller will provide Buyer with reasonable access to any documents, schedules, work papers or other information used in the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement. The Parent Parties parties shall in good faith attempt to resolve any such dispute anddispute, if the Parent Parties so resolve all such disputes, in which event the Closing Cash StatementBalance Sheet, Closing Balance Sheet and the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon), the Closing Indebtedness Statement (and the computation of Closing Indebtedness indicated thereon) and the Closing Cash Statement (and the computation of Closing Cash indicated thereon), as amended to the extent necessary to reflect the resolution of such disputes and the agreement thereto of the Parent Partiesdispute, shall be conclusive and binding on the Partiesparties. If the Parties parties do not reach an agreement in resolving the dispute within 20 days Business Days after notice is given by Seller the Sellers' Representative to Buyer Purchaser pursuant to the second preceding sentence, the Parties parties shall submit refer the dispute to an internationally recognized accounting a firm of independent chartered accountants which is mutually acceptable agreeable to Seller and Buyer the parties (the “"Arbiter”") for resolution. As promptly If the parties cannot agree on the selection of a firm of independent chartered accountants to act as reasonably practicableArbiter, the parties shall request the president of the Institute of Chartered Accountants in England and Wales for the time being to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than 20 days Business Days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Buyer Purchaser and Sellerthe Sellers' Representative, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the amount of Cash at Closing Working Capital, the Closing Indebtedness and the Closing Working Capital Cash which shall be conclusive and binding on the Partiesparties. All proceedings conducted by the Arbiter shall take place in the city of London. In resolving any disputed item, the Arbiter (xa) shall be bound by the provisions of this Section 2.2 3.3 and (yb) may not assign a value to any item greater than the greatest value for such items claimed by either Parent Party party or less than the smallest value for such items claimed by either Parent Partyparty. The fees, costs and expenses of the Arbiter (the “Arbiter’s Costs”1) shall be allocated to and borne by Buyer Purchaser and Seller based on the inverse of the percentage that Sellers in such proportions as finally determined by the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, should the items in dispute total in amount to $1,000 and the Arbiter awards $600 in favor of Seller’s position, 60% of the Arbiter’s Costs of its review would be borne by Buyer and 40% of the Arbiter’s Costs would be borne by Seller.

Acceptance of Statements; Dispute Procedures. The Closing Balance Sheet, the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon), the Closing Indebtedness Statement (and the computation of Closing Indebtedness indicated thereon) and the Closing Cash Statement (and the computation of Closing Cash indicated thereon) delivered by Buyer Purchaser to Seller the Sellers’ Representative shall be conclusive and binding upon the Parties parties unless Sellerthe Sellers’ Representative, within 20 days Business Days after delivery to Seller the Sellers’ Representative of the Closing Cash StatementBalance Sheet, Closing Balance Sheet and the Closing Working Capital Statement, thatthe Closing Indebtedness Statement and the Closing Cash Statement, in each case, complies with Section 2.2.2 notifies Buyer Purchaser in writing that Seller the Sellers’ Representative disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. During such 20 day period and the pendency of any such disputes, (A) the Buyer and the Company will provide the Seller and its Representatives with reasonable access to (x) any documents, schedules, work papers or other information used in the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (y) employees of the Company and Buyer responsible for the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement and (B) the Seller will provide Buyer with reasonable access to any documents, schedules, work papers or other information used in the preparation of the Closing Cash Statement, Closing Balance Sheet and Closing Working Capital Statement. The Parent Parties parties shall in good faith attempt to resolve any such dispute anddispute, if the Parent Parties so resolve all such disputes, in which event the Closing Cash StatementBalance Sheet, Closing Balance Sheet and the Closing Working Capital Statement (and the computation of Closing Working Capital indicated thereon), the Closing Indebtedness Statement (and the computation of Closing Indebtedness indicated thereon) and the Closing Cash Statement (and the computation of Closing Cash indicated thereon), as amended to the extent necessary to reflect the resolution of such disputes and the agreement thereto of the Parent Partiesdispute, shall be conclusive and binding on the Partiesparties. If the Parties parties do not reach an agreement in resolving the dispute within 20 days Business Days after notice is given by Seller the Sellers’ Representative to Buyer Purchaser pursuant to the second preceding sentence, the Parties parties shall submit refer the dispute to an internationally recognized accounting a firm of independent chartered accountants which is mutually acceptable agreeable to Seller and Buyer the parties (the “Arbiter”) for resolution. As promptly If the parties cannot agree on the selection of a firm of independent chartered accountants to act as reasonably practicableArbiter, the parties shall request the president of the Institute of Chartered Accountants in England and Wales for the time being to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than 20 days Business Days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Buyer Purchaser and Sellerthe Sellers’ Representative, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the amount of Cash at Closing Working Capital, the Closing Indebtedness and the Closing Working Capital Cash which shall be conclusive and binding on the Partiesparties. All proceedings conducted by the Arbiter shall take place in the city of London. In resolving any disputed item, the Arbiter (xa) shall be bound by the provisions of this Section 2.2 3.3 and (yb) may not assign a value to any item greater than the greatest value for such items claimed by either Parent Party party or less than the smallest value for such items claimed by either Parent Partyparty. The fees, costs and expenses of the Arbiter (the “Arbiter’s Costs”1) shall be allocated to and borne by Buyer Purchaser and Seller based on the inverse of the percentage that Sellers in such proportions as finally determined by the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, should the items in dispute total in amount to $1,000 and the Arbiter awards $600 in favor of Seller’s position, 60% of the Arbiter’s Costs of its review would be borne by Buyer and 40% of the Arbiter’s Costs would be borne by Seller.