Dispute Settlement Procedures Principles
a) This procedure is designed to promote the resolution of issues that arise at the lowest possible level and to provide a step-by-step process which will be accessed if the parties are genuinely unable to resolve the issue.
b) At each step in the procedure, reasonable time is to be allowed for the parties to resolve the matter. The parties agree not to proceed to each next step in the procedure until the previous step has been completed. Following these procedures will ensure the dispute is resolved in the most efficient manner.
c) In the event of a dispute in relation to a matter arising under this agreement, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor and, if such discussions do not resolve the dispute, by discussions between the employee or employees concerned and more senior levels of management as appropriate. If the matter is not resolved at this level, the grievance shall be referred to the designated management representative.
d) Should the matter remain unresolved at this level, the Employee, at his/her discretion, may nominate a representative to meet with the Supervisor, the designated manager,and the Consultative Committee to resolve the issue.
e) A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.
f) If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the Australian Industrial Relations Commission (the Commission) for resolution by mediation and/or conciliation. Any solution proposed by the Commission or another third party must be consistent with the Construction Code and Guidelines and relevant legislation.
g) It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally. The circumstances that applied prior to the dispute arising shall apply until final resolution of the matter.
h) Any dispute referred to the Commission under this clause should be dealt with by a member agreed by the parties at the time or, in default of agreement, a member nominated by either the head of the relevant panel or the President.
i) This dispute resolution procedure does not apply to Occupational Health and Safety matters. It is expected that the Occupational Health and Safety Representatives will follow appropriate procedures in the resolution of any Health and Safety matters.
Liquidation Settlement Procedures If at any time on or prior to the Termination Date for such Class the Aggregate Percentage Factor is greater than the Maximum Percentage Factor, then the Transferor shall immediately pay to the Administrative Agent, for the benefit of the Class Investors from previously received Collections, an amount equal to the amount such that, when applied in reduction of the Aggregate Net Investment, will result in an Aggregate Percentage Factor less than or equal to the Maximum Percentage Factor. Such amounts shall be applied pro rata to the reduction of the Net Investment for each Class of the Tranche Periods selected by the Class Agent for such Class. With respect to each Class, on the Termination Date for such Class and on each day thereafter, and on each day on which a Termination Event or Potential Termination Event has occurred and is continuing for such Class, the Collection Agent shall set aside and hold in trust for the applicable Class Investors for such Class (or deposit into the Collection Account if so required pursuant to Section 2.12 hereof) the Percentage Factor for such Class of all Collections received on such day and shall set aside and hold in trust for the Transferor such portion of Collections not allocated to the Class Investors. On each such Termination Date or the day on which a Termination Event or Potential Termination Event for such Class for which there is no grace period occurs, the Collection Agent shall deposit to the Administrative Agent’s account, for the benefit of the applicable Class Investors for such Class, any amounts set aside pursuant to Section 2.5 above. With respect to each Class, on the last day of each Tranche Period to occur on or after such Termination Date for such Class or during the continuance of a Termination Event or Potential Termination Event for such Class, the Collection Agent shall deposit to the Administrative Agent’s account to the extent not already so deposited, for the benefit of the Class Investors for such Class, the amounts so set aside for such Class Investors, pursuant to the second preceding sentence, but not to exceed the sum of (i) the accrued Discount (which, in the case of Discount computed by reference to the CP Rate with respect to any Class Conduit that utilizes “pool” funding, shall be determined for such purpose using the CP Rate most recently determined by the related Class Agent, multiplied by the Fluctuation Factor) for such Tranche Period (ii) the portion of the Net Investment allocated to such Tranche Period and (iii) all other Aggregate Unpaids owing to such Class Investors. On such day, the Collection Agent shall deposit to its account, from the amounts set aside for such Class, pursuant to the preceding sentence which remain after payment in full of the aforementioned amounts, the accrued Servicing Fee for such Tranche Period. If there shall be insufficient funds on deposit for the Collection Agent to distribute funds in payment in full of the aforementioned amounts, the Collection Agent shall distribute funds first, if the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is not then the Collection Agent, to the Collection Agent’s account, in payment of the Servicing Fee payable to the Collection Agent, second, in payment of all fees payable by the Transferor to the Administrative Agent or any of the Class Investors, third, in payment of the accrued Discount to each Class, fourth, in reduction of the Net Investment allocated to any Tranche Period ending on such date, fifth, in payment of all other Aggregate Unpaids owing to the Class Investors, as applicable, and sixth, if the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is the Collection Agent, to its account as Collection Agent, in payment of the Servicing Fee payable to such Person as Collection Agent. The Administrative Agent, upon its receipt of such amounts in the Administrative Agent’s account, shall distribute such amounts to the Class Investors, each as entitled thereto as set forth above; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts in the order of priority set forth above and, with respect to any such category above for which the Administrative Agent shall have insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to such Persons) among all such Persons entitled to payment thereof. Following the date after all Termination Dates on which the Aggregate Net Investment has been reduced to zero, all accrued Discount and Servicing Fees have been paid in full and all other Aggregate Unpaids have been paid in full, (i) the Collection Agent shall recompute the Percentage Factor for each Class, (ii) the Administrative Agent, on behalf of the Class Investors, shall be considered to have reconveyed to the Transferor all of the Class Investors’ right, title and interest in and to the Affected Assets (including the Transferred Interest), (iii) the Collection Agent shall pay to the Transferor any remaining Collections set aside and held by the Collection Agent pursuant to the third sentence of this Section 2.6 and (iv) the Administrative Agent, on behalf of the applicable Class Investor(s), shall execute and deliver to the Transferor, at the Transferor’s expense, such documents or instruments as are necessary to terminate the Class Investors’ respective interests in the Affected Assets. Any such documents shall be prepared by or on behalf of the Transferor. On the last day of each Tranche Period, the Collection Agent shall remit to the Transferor such portion of Collections set aside for the Transferor pursuant to this Section 2.6.
Settlement Procedures On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii), minus any amounts required to be deposited to the Revolver Loan Funding Accounts in accordance with Section 2.14 below being the “Available Collections”) the following amounts in the following order of priority:
(a) During the Revolving Period, and in each case unless otherwise specified below, applying Interest Collections first, and then Principal Collections:
(i) FIRST, to the Borrower, the aggregate amount of fees (including up-front, continuing or success fees) received in respect of the Transferred Loans;
(ii) SECOND, to each Hedge Counterparty, any amounts owing that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Counterparty is not the same Person as the Administrative Agent, any Swap Breakage and Indemnity Amounts;
(iii) THIRD, to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, for the payment thereof;
(iv) FOURTH, to the extent not paid by the Servicer, to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and, if any, accrued and unpaid Transition Costs, Backup Servicer Expenses and Market Servicing Fee Differential, each for the payment thereof;
(v) FIFTH, to the extent not paid by the Servicer, to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and Collateral Custodian Expenses, if any, for the payment thereof;
(vi) SIXTH, to the Servicer, in an amount equal to (A) if the Servicer is Gladstone Management Corporation or any of its Affiliates, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period, up to the Servicing Fee Limit Amount for such Settlement Period, for the payment thereof and (B) otherwise, its accrued and unpaid Servicing Fees to the end of the preceding Settlement Period for the payment thereof;
(vii) SEVENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Payment Date;
(viii) EIGHTH, first, to the extent of available Principal Collections, and second, to the extent of available Interest Collections, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, an amount equal to the excess, if any, of Advances Outstanding over the lesser of (i) the Borrowing Base or (ii) the Facility Amount, together with the amount of Breakage Costs incurred by the applicable Lenders in connection with any such payment (as such Breakage Costs are notified to the Borrower by the applicable Lender(s)), pro rata; provided, however, that to the extent that (i) the Termination Date has not occurred and (ii) Advances Outstanding exceed the Facility Amount due to one or more Lenders becoming Non-Renewing Lenders, to each Managing Agent on behalf of such Non-Renewing Lenders only, pro rata in accordance with their Advances Outstanding;
(ix) NINTH, to each Hedge Counterparty, any Swap Breakage and Indemnity Amounts owing that Hedge Counterparty;
(x) TENTH, to the Administrative Agent for payment to each Managing Agent, on behalf of the related Lenders, in the amount of unpaid Breakage Costs (other than Breakage Costs covered in clause (vii) above) with respect to any prepayments made on such Payment Date Increased Costs, and/or Taxes (if any);
(xi) ELEVENTH, to the Swingline Lender, for the portion of the Obligations constituting unpaid principal of the Swing Advances;
Final Settlement The Parties agree and acknowledge that this Compromise Agreement shall constitute a final settlement between the Parties. This Compromise Agreement resolves only issues addressed in the Compromise Agreement.
DISPUTES SETTLEMENT PROCEDURE 9.1 A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over any work related or industrial matter (including a dispute about whether a workplace right has been breached) or any matters arising out of the operation of the Agreement or incidental to the operation of the Agreement should be dealt with as close to its source as possible. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship or the NES, including subsections 65(5) or 76(4) of the Fair Work Act) shall be dealt with according to the following procedure.
9.2 The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.
9.3 All Employees have the right to appoint a representative in relation to a dispute. It is the express priority of all Parties to attempt to settle a dispute at the workplace level at first instance.
9.4 In the event of any work-related grievance arising between the Employer and an Employee or Employees, the matter shall be dealt with in the following manner:
(a) The matter shall be first submitted by the Employee/s or his/her job delegate/ employee representative or other representative, to the site foreperson/supervisor or the other appropriate site representative of the Employer and if not settled, to a more senior representative of the Employer.
(b) Alternatively, the Employer may submit an issue to the Employee/s who may seek the assistance and involvement of the job delegate/employee representative or other representative.
(c) If still not resolved, there may be discussions between the relevant Union official (if requested by the employee/s), or another representative of the employee, and senior representative of the Employer.
(d) Should the matter remain unresolved, either of the parties or their representative shall refer the dispute at first instance to FWC for review. FWC may exercise conciliation and/or arbitration powers in such review.
9.5 This procedure shall be followed in good faith without unreasonable delay.
9.6 If any party fails or refuses to follow any step of this procedure the non-breaching party will not be obligated to continue through the remaining steps of the procedure and may immediately seek relief by application to FWC.
9.7 Any resolution of a dispute under this clause by the FWC will not be inconsistent with legislative obligations or any other applicable Codes or Regulations.
DISPUTE SETTLEMENT PROCEDURE A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over any work related or industrial matter should be dealt with as close to its source as possible. Disputes over matters arising from this agreement shall be dealt with according to the following procedure. An employee or the union delegate or site xxxxxxx or Enterprise should initially submit any work related grievance and/or industrial matter to the site foreperson, supervisor or other appropriate site representative of the company or appropriate site union representative as relevant. If the matter remains unresolved the union delegate or site xxxxxxx may then submit the matter to the appropriate senior management person. Where relevant the Enterprise may submit the matter to a union official. If still not resolved the delegate or site xxxxxxx shall refer the matter to an appropriate official of the union, who shall discuss the matter with the nominated representative of the Enterprise. If still not resolved there may be discussions between the state secretary and senior management representative. Whilst the above procedures are being followed work should continue as normal. This procedure is to be followed in good faith and without unreasonable delay by any party. Should the matter remain unresolved and where the issue is within the jurisdiction of the Victorian Building Industry Disputes Board (“the Board”), either of the parties shall refer the dispute at first instance to the Board (which shall deal with the dispute in accordance with VBIA procedures and, where required, determine issues of jurisdiction). The Board’s decision will be accepted by all parties subject to the right of either party to refer the dispute to the Australian Industrial Relations Commission for conciliation and if required arbitration. The Commission’s decision will be accepted by all parties subject to legal rights of appeal. This dispute settlement procedure does not apply to health and safety issues or issues of industry, state or national significance.
Payment Procedures Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and certification duly executed, accompanied by payment of the aggregate Purchase Price for the total number of one one-hundredths of a Preferred Share to be purchased and an amount equal to any applicable transfer tax required to be paid by the holder of such Right Certificate in accordance with Section 9, in cash or by certified or cashier's check or money order payable to the order of the Company, the Rights Agent shall thereupon promptly (i)
(A) requisition from any transfer agent of the Preferred Shares (or make available, if the Rights Agent is the transfer agent) certificates for the number of Preferred Shares to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply with all such requests, or (B) if the Company shall have elected to deposit the total number of Preferred Shares issuable upon exercise of the Rights hereunder with a depository agent, requisition from the depositary agent depositary receipts representing interests in such number of one one-hundredths of a Preferred Share as are to be purchased (in which case certificates for the Preferred Shares represented by such receipts shall be deposited by the transfer agent with the depositary agent) and the Company hereby directs the depositary agent to comply with all such requests, (ii) when appropriate, requisition from the Company the amount of cash to be paid in lieu of the issuance of fractional shares in accordance with Section 14 or otherwise in accordance with Section 11.1.3, (iii) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder and (iv) when appropriate, after receipt, promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11.1.3, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate.
Settlement Procedure 4.1. The Client has the right to withdraw his/her own funds which are not encumbered with deposit obligations or Commission payments in case of Copy Trading.
4.2. Money transfers are made within 1-3 banking days.
4.3. Money transfer can be deferred by the Company for the period of 14 working days in exceptional cases requiring verification of compliance of trading and non-trading operations conducted by the Client with the terms and conditions of this Agreement. If such situation occurs, Company shall immediately notify Client by e-mail specified in the Client Profile. The Client has the right to request the status of the verification process only by contacting Trading operations department by e-mail at: xxxxxxx@xxxxxxxxxxx.xxx.
4.4. The Client’s payment instruction received, the amount to withdraw is deducted from the
4.5. In case of return of funds, the Client pays transfer fees.
4.6. The Client gives all instructions related to deposits and withdrawals of funds from the account through the Client's Profile in the order determined by the algorithm of Client's Profile operation.
4.7. The Company corrects balances in the accounts with a fixed negative value in the “Balance” column in the trading terminal on the 1st of each month. Correction (setting to zero) of trading accounts shall be applied solely to those accounts in which no trades are conducted at the moment of correction, i.e. no active open trading positions are present (pending orders will not be considered). Bonus funds are deducted from the “Credit” column with the comment “bonus_out (negative balance)”. At the same time, funds in the amount equal to the negative balance value are put into the account with the comment “Zero Balance Correction”.
4.8. The Client can withdraw funds from his/her account using any payment system which is accessible in the Client’s Profile.
4.8.1. If funds withdrawal is made via electronic payment systems, the withdrawal is possible only to the same system and with the same payment details within the system that were used to top up the trading account, and in same currency in which the deposit was made. If the account was topped up by different ways, in various currencies and using different payment details, withdrawals should be made proportionally.
4.8.2. If the Client’s payment details within the payment system are changed for some reason, the Client shall notify the Company by sending an email to the financial department with a photo where the Client is holding an ID close to his/her face attached. Otherwise, the Company reserves the right to deny funds withdrawal by use of new payment details.
4.9. Deposit of Client’s funds can be made by any methods available on the Company’s site.
4.9.1. The Client acknowledges that in case of software failure there can be delays in depositing funds in his/her trading account.
4.9.2. The Company undertakes to deposit funds in the Client’s trading account in case of any software failure resulting in delay in automated deposit provided that the Company was informed about the delay by the Client.
4.10. The Company doesn’t charge any deposit or withdrawal fees from Clients’ trading accounts.
4.11. The Client understands and accepts the fact that his/her money withdrawal request may be declined, and money will be retransferred to the Client’s account if the Client did not provide necessary identification information (copy of ID document, bank card or any other documents required by the Company based on the AML policy) upon the Company’s request via the Client’s Profile within 7 (seven) business days following the request.
4.12. The Client agrees that the Company may accept and make payments through payment agents. In particular, Skrill and Neteller payments are processed through LiteFinance Consulting Limited registered at Xxxxxx 00 Xxxxxxxx Xxxxx, 00 Xxxx Xxxxxx, XX 11 1 AA, Gibraltar, and acting as a payment agent of LiteFinance Global LLC.
Final Settlement Statement (a) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of Xxxxx Xxxxxxxx LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (Xxxxx Xxxxxxxx LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If Xxxxx Xxxxxxxx LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Adjustment Procedure (a) Prior to Closing, Company has caused to be prepared and delivered to Buyer a certificate signed by Company’s chief financial officer containing a calculation of Company’s estimation of (i) the Working Capital as of the close of Company’s business on the day immediately preceding the Closing, and (ii) the Adjustment Amount, if any, (the “Estimated Closing Working Capital Statement”). As required by Section 2.2 of this Agreement, the cash portion of the Purchase Price to be paid in accordance with Section 2.4(b)(i) of this Agreement will (x) be decreased by the estimated Adjustment Amount if the estimated Adjustment Amount is below US $1.00 and (y) remain unchanged (subject to future adjustments pursuant to Section 2.6(b)) if the estimated Adjustment Amount is greater than US $1.00. For purposes of preparation of the Estimated Closing Working Capital Statement the Remaining Inter-Company Receivable as of the Closing Date shall be deemed to be $0.
(b) Buyer will prepare (or cause to be prepared) a working capital statement (“Closing Working Capital Statement”) of Company as of the Closing Date, including a computation of the Working Capital as of the Closing Date. Buyer will deliver the Closing Working Capital Statement to Parent within sixty (60) consecutive days after the Closing Date. The Working Capital shall be deemed accepted and conclusive and binding, unless Parent shall give written notice to Buyer of the items with which Parent disagrees (“Disagreement Notice”) within twenty (20) consecutive days after the receipt by Parent of the Closing Working Capital Statement (or the due date thereof if not so delivered). The Disagreement Notice shall specify each item disagreed with by Parent (or Parent’s calculation thereof), the dollar amount of the disagreement. Buyer and Parent shall, during the twenty (20) consecutive days after receipt by Buyer of the Disagreement Notice, negotiate in good faith to resolve any such disagreements with respect to the Closing Working Capital Statement and Working Capital calculation. If at the end of such twenty (20) consecutive days, Buyer and Parent have been unable to resolve their disagreements, either Buyer or Parent may engage, on behalf of Buyer and Parent, Xxxxx Xxxxxxxx LLP (or such other Person mutually agreed to in writing by the parties, the “Unaffiliated Firm”) to resolve the matters set forth in the Disagreement Notice. The Unaffiliated Firm shall (i) resolve the disagreement as to the Closing Working Capital Statement as promptly as possible after its engagement by the parties, but in any event the parties shall direct the Unaffiliated Firm to complete its findings and report within twenty (20) consecutive days after its engagement, (ii) thereby consider and resolve only those items in the Disagreement Notice which remain unresolved between Buyer and Parent, and (iii) shall otherwise employ such procedures as it, in it sole discretion, deems necessary or appropriate in the circumstances with regard to the time limit specified. The Unaffiliated Firm shall submit to Buyer and Parent a report of its review of the items in the Disagreement Notice as promptly as practicable and shall include in such report its determination of the Working Capital, which adjustments shall be no more favorable to Buyer than reflected in the Closing Working Capital Statement, and no more favorable to Parent than reflected in the Disagreement Notice. The determinations so made by the Unaffiliated Firm shall be conclusive, binding on, and non-appealable by, the parties hereto. The fees and disbursements of the Unaffiliated Firm shall be borne one half by Parent and one half by Buyer.
(c) The parties hereto agree that for purposes of determining and comparing the Closing Working Capital Statement, as finally determined pursuant to this Section 2.6(b), with the Estimated Closing Working Capital Statement, an exchange ratio of US $0.5443 per UK £1 shall be used and that there will be no changes as a result of fluctuations in the exchange rate.
(d) Within ten (10) Business Days after the Working Capital calculation becomes final and binding on the parties, (A) if the Working Capital is negative, Parent shall pay such Adjustment Amount to Buyer by wire transfer in immediately available funds to the extent such amount was not already deducted from the Purchase Price pursuant to Section 2.6(a) and (B) if the Working Capital is positive, Buyer shall pay such Adjustment Amount to Parent by wire transfer in immediately available funds.
(e) For purposes of calculating Working Capital and the Adjustment Amount pursuant to this Section 2.6, the following items shall not be included in the calculation of current assets:
(i) Fees to be paid to the Company by Xxxxxxxxx 3G UK Limited pursuant to an oral agreement confirmed in an email dated October 21, 2004, for the provision of support and maintenance services for the month of October by the Company in the approximate net amount of £98,000;
(ii) Any amount of unreceived rent (approximately £37,000) to be returned to the Company upon renewal of the lease by Picochip, a subtenant in the Company offices located in Bath, England; and
(iii) The T-Mobile Receivable (as defined below).
(f) The parties acknowledge and agree that the receivable associated with the T-Mobile Bought Team October Services in the approximate amount of £145,000 (“T-Mobile Receivable”) has been excluded from the preparation of the Estimated Closing Working Capital Statement and shall be excluded from the preparation of the Closing Working Capital Statement. Buyer agrees to cause the Company to use commercially reasonable efforts to collect the T-Mobile Receivable in the same manner it collects its other accounts receivables. If the Company receives any payments with respect to the T-Mobile Receivable, Buyer shall pay Parent an amount equal to the amount Company received in respect of the T-Mobile Receivable (less reasonable collection costs, if any) within ten (10) consecutive days following the end of the month in which such payment is received, without interest.
