Common use of Determination of Post-Closing Adjustment Clause in Contracts

Determination of Post-Closing Adjustment. (a) No later than ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller Representative a statement (the “Buyer Closing Statement”) setting forth (i) a calculation of the amounts as of the Closing of (A) Cash, (B) Indebtedness of the Company and the PCs, (C) Transaction Costs and (D) Net Working Capital, and (ii) a calculation, based upon the foregoing amounts, of the Closing Cash Payment Amount and the sum of (A) such amount, less (B) the Closing Cash Payment Amount set forth in the Company Closing Statement (such sum, whether positive or negative, the “Adjustment Amount”), together with reasonable supporting detail of each of the calculations set forth in the Buyer Closing Statement. The Buyer Closing Statement shall be prepared in a manner consistent with the terms hereof and GAAP as reflected, and consistently applied, in the Company’s fiscal year 2020 combined audited financial statements, and (ii) shall not otherwise include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or arising from any act, decision or event occurring at or after the Closing, including any liabilities or obligations incurred or arranged by or on behalf of the Buyer or its Affiliates in connection with the transactions contemplated by this Agreement (including any fees payable to any financing institution). For the avoidance of doubt, the receipt by Buyer or its Affiliates of notice after the Closing of an event that occurred prior to the Closing shall not prevent Buyer from including any changes in assets or liabilities resulting from the event. (b) Following delivery of the Buyer Closing Statement and until the final determination of the Adjustment Amount, Buyer and its Subsidiaries (including the Company) shall (i) permit Seller Representative and its Representatives to have reasonable access, during normal business hours and upon reasonable notice, to the books and records of the Company and (ii) provide Seller Representative and its Representatives reasonable access, during normal business hours and upon reasonable notice, to the employees and advisors of Buyer and its Subsidiaries (including the Company) involved in the preparation of the Buyer Closing Statement, provided in each case that such access does not unreasonably disrupt the normal operations of Buyer or the Company. The Buyer Closing Statement shall be conclusive, final and binding on the Parties unless Seller Representative delivers to Buyer within thirty (30) days after receipt of the Buyer Closing Statement a written notice (a “Dispute Notice”) asserting objections to the calculations set forth therein and setting forth the resulting calculation of the Adjustment Amount based on such objections (collectively, the “Disputed Items”) with reasonable supporting detail as to such Disputed Items and certifying that the Disputed Items are being disputed in good faith. (c) If a Dispute Notice is delivered to Buyer, then Buyer and Seller Representative shall, for a period of forty-five (45) days following delivery of the Dispute Notice to Buyer, attempt in good faith to resolve the Disputed Items and all such discussions and communications related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. Any Disputed Items agreed to by Buyer and Seller Representative in writing, together with any items or calculations set forth in the Buyer Closing Statement not disputed or objected to by Seller Representative shall be conclusive, final and binding on the Parties absent manifest error. (d) If, at the end of the forty-five (45) day period following the delivery of the Dispute Notice, Buyer and Seller Representative have been unable to resolve the Disputed Items, Buyer or Seller Representative may, upon written notice to the other, refer all matters that remain in dispute with respect to the Dispute Notice (the “Unresolved Matters”) to RSM US LLP, or, if RSM US LLP is unwilling to serve in such capacity, to a mutually agreeable independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company. If Buyer and Seller Representative are unable to jointly select such independent accounting firm within ten (10) days after such forty-five (45) day period, Buyer, on the one hand, and Seller Representative, on the other hand, will each select an independent accounting firm of recognized national or regional standing and each such selected accounting firm will select a third independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company; provided, however, that if either Buyer, on the one hand, or Seller Representative, on the other hand, fails to select such independent accounting firm during the ten (10) day period, then the independent accounting firm selected by the other Party will be the independent accounting firm selected for the purposes hereof (such selected independent accounting firm, whether pursuant to this sentence or the preceding sentence, the “Independent Accountant”). If one or more Unresolved Matters are submitted to the Independent Accountant for resolution, Buyer and Seller Representative shall enter into a customary engagement letter with, and, to the extent necessary, will waive any conflicts with, the Independent Accountant at the time such dispute is submitted to the Independent Accountant and shall cooperate with the Independent Accountant in connection with its determination pursuant to this Section 2.6. Within ten (10) Business Days after the Independent Accountant has been retained, each of Buyer and Seller Representative shall furnish, at its own expense, to the Independent Accountant and substantially simultaneously to the other a written statement of its position with respect to each Unresolved Matter. Within five (5) Business Days after the expiration of such ten (10) Business Day period, each of Buyer and Seller Representative may deliver to the Independent Accountant its response to the other’s position on each Unresolved Matter (provided, that it delivers a copy thereof substantially simultaneously to the other). With each submission, each of Buyer and Seller Representative may also furnish to the Independent Accountant such other information and documents as it deems relevant or such information and documents as may be requested by the Independent Accountant (provided, that it delivers a copy thereof substantially simultaneously to the other). The Independent Accountant may, at its discretion, conduct one or more conferences (whether in person or by teleconference or videoconference) concerning the disagreement and each of Buyer and Seller Representative shall have the right to present additional documents, materials and other information and to have present its Representatives at such conferences. (e) The Independent Accountant shall be directed to promptly, and in any event within thirty (30) days after its engagement, render its decision on the Unresolved Matters (and not on any other matter) in accordance with the terms hereof. The Independent Accountant’s determination, acting as an expert in accounting and not as an arbitrator, as to each Unresolved Matter shall be set forth in a written statement delivered to each of Buyer and Seller Representative, which shall include the Independent Accountant’s (i) determination as to the calculation of each of the Unresolved Matters and (ii) the resulting calculation of the Adjustment Amount, all of which shall be conclusive, final and binding on the Parties absent manifest error. In deciding any matter, the Independent Accountant (i) shall be bound by the provisions of this Section 2.6(e) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by Buyer in the Buyer Closing Statement or by Seller Representative in the Dispute Notice or less than the lowest value for such item claimed by Buyer in the Buyer Closing Statement or by Seller Representative in the Dispute Notice. The fees, costs and expenses of the Independent Accountant shall be paid by each of Seller Representative and Buyer based on the inverse proportion of the difference between the Unresolved Matter proposed by each of them and the Unresolved Matter as determined by the Independent Accountant. For example, if Seller Representative proposes that the value of an Unresolved Matter is $100,000 and Buyer proposes that value of the Unresolved Matter is $0 and if the Independent Accountant ultimately determines the value of the Unresolved Matter is $20,000, then the fees, costs and expenses of the Independent Accountant for determining the Unresolved Matter will be allocated 80% to Seller Representative and 20% to Buyer.

Determination of Post-Closing Adjustment. (a) No later than ninety As promptly as reasonably practicable, but in any event within sixty (9060) days after the Closing Date, Buyer Purchaser shall prepare and deliver to Seller the Sellers’ Representative a statement (the “Buyer Closing Statement”) written statement, setting forth (i) a Purchaser’s calculation of the amounts as of the Aggregate Closing of (A) Cash, (B) Indebtedness of the Company and the PCs, (C) Transaction Costs and (D) Net Working Capital, and (ii) a calculation, based upon the foregoing amounts, of the Closing Cash Payment Amount and the sum of (A) such amount, less (B) the Closing Cash Payment Amount set forth in the Company Closing Statement (such sum, whether positive or negative, the “Adjustment Amount”)Consideration, together with reasonable supporting detail information and documentation, including Purchaser’s good faith calculation of each of the calculations set forth in the Buyer Closing Statement. The Buyer Closing Statement shall be prepared in a manner consistent with the terms hereof and GAAP as reflected(i) Cash, and consistently applied, in the Company’s fiscal year 2020 combined audited financial statements, and (ii) shall not otherwise include any changes in assets or liabilities the Sellers’ Transaction Expenses, (iii) the total amount of Indebtedness outstanding as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or arising from any act, decision or event occurring at or after the Closing, including any liabilities or obligations incurred or arranged by or on behalf of (iv) Working Capital and (v) the Buyer or its Affiliates in connection with the transactions contemplated by this Agreement Aggregate Adjusted Closing Consideration (including any fees payable to any financing institution). For the avoidance of doubtsuch statement, the receipt by Buyer or its Affiliates of notice after the “Closing of an event that occurred prior to the Closing shall not prevent Buyer from including any changes in assets or liabilities resulting from the eventStatement”). (b) Following delivery If the Sellers’ Representative disagrees with Purchaser’s calculation of the Buyer Closing Statement and until Cash, Indebtedness, Working Capital and/or the final determination of unpaid Sellers’ Transaction Expenses, in each case as reflected on the Adjustment Amount, Buyer and its Subsidiaries (including the Company) shall (i) permit Seller Representative and its Representatives to have reasonable access, during normal business hours and upon reasonable notice, to the books and records of the Company and (ii) provide Seller Representative and its Representatives reasonable access, during normal business hours and upon reasonable notice, to the employees and advisors of Buyer and its Subsidiaries (including the Company) involved in the preparation of the Buyer Closing Statement, provided in each case that such access does not unreasonably disrupt the normal operations of Buyer or the Company. The Buyer Closing Statement shall be conclusiveSellers’ Representative may, final and binding on the Parties unless Seller Representative delivers to Buyer within thirty (30) days after receipt of the Buyer Closing Statement a written notice (a “Dispute Notice”) asserting objections to the calculations set forth therein and setting forth the resulting calculation of the Adjustment Amount based on such objections (collectively, the “Disputed Items”) with reasonable supporting detail as to such Disputed Items and certifying that the Disputed Items are being disputed in good faith. (c) If a Dispute Notice is delivered to Buyer, then Buyer and Seller Representative shall, for a period of forty-five (45) days following delivery after receipt of the Dispute Notice to BuyerClosing Statement, attempt in good faith to resolve the Disputed Items and all such discussions and communications related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. Any Disputed Items agreed to by Buyer and Seller Representative in writing, together with any items or calculations set forth in the Buyer Closing Statement not disputed or objected to by Seller Representative shall be conclusive, final and binding on the Parties absent manifest error. (d) If, at the end of the forty-five (45) day period following the delivery of the Dispute Notice, Buyer and Seller Representative have been unable to resolve the Disputed Items, Buyer or Seller Representative may, upon deliver a written notice to the other, refer all matters that remain in dispute with respect to the Dispute Notice (the “Unresolved MattersDispute Notice”) to RSM US LLPPurchaser setting forth the Sellers’ Representative’s calculation of each disputed amount (each, or, if RSM US LLP is unwilling to serve in such capacity, to a mutually agreeable independent accounting firm an “Item of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the CompanyDispute”). If Buyer and Seller Representative are unable to jointly select such independent accounting firm within ten (10) days after During such forty-five (45) day period, BuyerPurchaser shall (i) provide the Sellers’ Representative with reasonable access during normal business hours upon reasonable prior notice to the books and records (including supporting data) and Representatives of Purchaser, the Barteca Entities and the Blockers (and, subject to the execution of customary access papers, their accounts and auditors) for purposes of its review of the Closing Statement, and (ii) reasonably cooperate with the Sellers’ Representative in connection with such review, including by providing, on a reasonably timely basis, all other information reasonably requested by the one handSellers’ Representative in connection with its review of the Closing Statement; provided that (A) any access shall be conducted in such a manner as does not unreasonably interfere with the normal operations of Purchaser, the Blockers or the Barteca Entities and Seller (B) without the prior written consent of Purchaser, none of the Sellers’ Representative, on the Blocker Sellers or the Unitholders or any of their respective Representatives shall knowingly contact any suppliers to, or other handbusiness relations (other than the Representatives of Purchaser, will the Barteca Entities and the Blockers, including their accountants and auditors) of, Purchaser or any of its Affiliates (including the Barteca Entities), in each case, in connection with the review of the Closing Statement. If Purchaser does not receive a Dispute Notice within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties. If Purchaser receives a Dispute Notice from the Sellers’ Representative within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement, Purchaser and the Sellers’ Representative shall use their respective commercially reasonable efforts to resolve each Item of Dispute, and, if any Item of Dispute is so resolved, the Closing Statement shall be modified to the extent necessary to reflect such resolution. If any Item of Dispute remains unresolved as of the thirtieth (30th) day after delivery by the Sellers’ Representative of the Dispute Notice, Purchaser and the Sellers’ Representative shall jointly retain RSM US LLP to resolve such remaining disagreement, it being understood that any item not included as an Item of Dispute in the Dispute Notice shall be conclusive and binding upon each of the Parties as set forth in the Closing Statement. If RSM US LLP is unwilling or unable to serve as the Arbiter, the Sellers’ Representative and Purchaser shall jointly select an and retain a nationally recognized accounting firm that is not the auditor or independent accounting firm of recognized national Purchaser, the Barteca Entities, the Blockers or regional standing and each any Blocker Seller to serve as the Arbiter (RSM US LLP or such selected other accounting firm will select engaged in accordance with the terms and conditions of this Section 1.12(b), the “Arbiter”). If, within fifteen (15) days after any date the Arbiter informs the Sellers’ Representative and Purchaser that it is unable or unwilling to serve as the Arbiter, and the Sellers’ Representative and Purchaser cannot mutually agree on an alternate Person to serve as the Arbiter, either the Sellers’ Representative or Purchaser may request the American Arbitration Association to appoint as the Arbiter, within fifteen (15) days from the date of such request or as soon as practicable thereafter, a third partner in a nationally recognized accounting firm that is not the auditor or independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm any of Buyer or the Company; provided, however, that if either Buyer, on the one hand, or Seller Representative, on the other hand, fails to select such independent accounting firm during the ten (10) day period, then the independent accounting firm selected by the other Party will be the independent accounting firm selected for the purposes hereof (such selected independent accounting firm, whether pursuant to this sentence or the preceding sentencePurchaser, the “Independent Accountant”)Barteca Entities, the Blockers or any Blocker Seller, who is a certified public accountant and who is independent of Purchaser, the Barteca Entities, the Blockers and the Blocker Seller to serve as the Arbiter. If one or more Unresolved Matters are submitted to Purchaser and the Independent Accountant for resolution, Buyer and Seller Sellers’ Representative shall enter into request that the Arbiter render a customary engagement letter with, and, to the extent necessary, will waive any conflicts with, the Independent Accountant at the time such dispute is submitted to the Independent Accountant and shall cooperate with the Independent Accountant in connection with its determination pursuant to this Section 2.6. Within ten (10) Business Days after the Independent Accountant has been retained, each of Buyer and Seller Representative shall furnish, at its own expense, to the Independent Accountant and substantially simultaneously to the other a written statement of its position with respect as to each Unresolved Matter. Within five (5) Business Days after the expiration unresolved Item of such ten (10) Business Day period, each of Buyer and Seller Representative may deliver to the Independent Accountant its response to the other’s position on each Unresolved Matter (provided, that it delivers a copy thereof substantially simultaneously to the other). With each submission, each of Buyer and Seller Representative may also furnish to the Independent Accountant such other information and documents as it deems relevant or such information and documents as may be requested by the Independent Accountant (provided, that it delivers a copy thereof substantially simultaneously to the other). The Independent Accountant may, at its discretion, conduct one or more conferences (whether in person or by teleconference or videoconference) concerning the disagreement and each of Buyer and Seller Representative shall have the right to present additional documents, materials and other information and to have present its Representatives at such conferences. (e) The Independent Accountant shall be directed to promptly, and in any event Dispute within thirty (30) days after its engagementretention, render its decision and Purchaser and the Sellers’ Representative shall, and Purchaser shall cause the Blockers and the Barteca Entities and each of their respective Representatives to, reasonably cooperate with the Arbiter so as to enable it to make such determination as quickly and accurately as reasonably practicable, including by the provision by Purchaser, the Blockers and the Barteca Entities of reasonable supporting information and documentation relating to the Closing Statement or any Item of Dispute and all other items reasonably requested by the Arbiter (in each case in such a manner so as not to waive or eliminate any privilege applicable to any such information). The Arbiter shall consider only those items and amounts that were set forth on the Unresolved Matters (Closing Statement and not on any other matter) in accordance with the terms hereof. The Independent Accountant’s determination, acting as an expert in accounting Dispute Notice that remain unresolved by Purchaser and not as an arbitrator, as to each Unresolved Matter shall be set forth in a written statement delivered to each of Buyer and Seller the Sellers’ Representative, which shall include the Independent Accountant’s (i) determination as to the calculation of each of the Unresolved Matters and (ii) the resulting calculation of the Adjustment Amount, all of which shall be conclusive, final and binding on the Parties absent manifest error. In deciding resolving any matterItem of Dispute, the Independent Accountant (i) shall be bound by the provisions of this Section 2.6(e) and (ii) Arbiter may not assign a value to any item greater than the greatest value for such item claimed by Buyer in the Buyer Closing Statement or by Seller Representative in the Dispute Notice either Party, or less than the lowest smallest value for such item claimed by Buyer in either Party, on the Buyer Closing Statement or by Seller Representative in the Dispute Notice, as applicable. The Arbiter’s determination(s) shall be based upon the definitions of Cash, Sellers’ Transaction Expenses, Indebtedness and Working Capital (as applicable) included herein, and shall not be an independent review. The Arbiter’s determination of each Item of Dispute submitted to it shall be in writing, shall conform with this Section 1.12 and otherwise with terms of, including the definition set forth in, this Agreement and shall be conclusive and binding upon each of the Parties, and the Closing Statement shall be modified to the extent necessary to reflect such determination(s). The Arbiter shall allocate its fees, costs and expenses between Purchaser, on the one hand, and the Sellers’ Representative, on the other hand, based upon the percentage which the portion of the Independent Accountant contested amount not awarded to each such Party bears to the amount actually contested by such Party. The Cash, Sellers’ Transaction Expenses, total amount of Indebtedness outstanding as of the Closing and Working Capital, in each case as finally determined pursuant to this Section 1.12, are referred to herein as the “Actual Cash,” “Actual Sellers’ Transaction Expenses,” “Actual Indebtedness” and the “Actual Working Capital,” respectively. (c) If the Aggregate Adjusted Closing Consideration as finally determined pursuant to Section 1.12(b) is greater than the Aggregate Closing Consideration, then, within five (5) Business Days after the determination of Aggregate Adjusted Closing Consideration, (i) Purchaser shall pay an amount equal to such excess to the Paying Agent, by wire transfer of immediately available funds to the applicable account designated by the Paying Agent, and (ii) Purchaser and the Sellers’ Representative shall instruct the Escrow Agent to pay to the Paying Agent, by wire transfer of immediately available funds, the Adjustment Escrow Fund (the “Purchase Price Excess Amount”). As promptly as reasonably practicable after receipt of the Purchase Price Excess Amount, the Paying Agent shall disburse the Purchase Price Excess Amount to the Blocker Sellers and the Unitholders (other than any holder of Blocker Units) in accordance with the Distribution Waterfall. (d) If the Aggregate Adjusted Closing Consideration is less than the Aggregate Closing Consideration (such amount, the “Purchase Price Shortfall”), then, within five (5) Business Days after the determination of the Aggregate Adjusted Closing Consideration, Purchaser and the Sellers’ Representative shall instruct the Escrow Agent to (i) pay to Purchaser, by wire transfer of immediately available funds from the Adjustment Escrow Fund to a bank account designated in writing by Purchaser, an amount equal to the lesser of (A) the Purchase Price Shortfall and (B) the then remaining balance of the Adjustment Escrow Fund and (ii) following any payment pursuant to the foregoing clause (i), pay to the Paying Agent the then remaining balance of the Adjustment Escrow Fund, if any. As promptly as reasonably practicable after receipt of any such remaining balance, the Paying Agent shall disburse such remaining balance to the Blocker Sellers and the Unitholders (other than any holder of Blocker Units) in accordance with the Distribution Waterfall. The Parties agree that the Adjustment Escrow Fund shall serve as the sole and exclusive source of recovery for any amounts owed to Purchaser in connection with the final determination of the Aggregate Adjusted Closing Consideration pursuant to this Agreement. (e) The Parties agree that (i) this Section 1.12 is not intended to be used to adjust for errors, omissions or adjustments that may be found with respect to the Unaudited Financial Statements or any other balance sheet referenced in Section 2.17(a) or any inconsistencies or adjustments between the Unaudited Financial Statements or any other balance sheet referenced in Section 2.17(a) and GAAP and (ii) any payments pursuant to this Section 1.12 shall be paid treated as an adjustment to the applicable purchase price for Tax purposes to the maximum extent permitted by each of Seller Representative and Buyer based on the inverse proportion of the difference between the Unresolved Matter proposed by each of them and the Unresolved Matter as determined by the Independent Accountant. For example, if Seller Representative proposes that the value of an Unresolved Matter is $100,000 and Buyer proposes that value of the Unresolved Matter is $0 and if the Independent Accountant ultimately determines the value of the Unresolved Matter is $20,000, then the fees, costs and expenses of the Independent Accountant for determining the Unresolved Matter will be allocated 80% to Seller Representative and 20% to Buyerapplicable Law.

Determination of Post-Closing Adjustment. (a) No later than ninety thirty (9030) days after following the Closing DateClosing, Buyer Purchaser shall prepare and deliver to Seller the Sellers’ Representative a statement Purchaser’s calculation of the actual Indebtedness of the Company Group as of the Adjustment Time (the “Buyer Closing StatementActual Indebtedness”) setting forth (i) and a calculation of the amounts actual Transaction Expenses as of the Closing of Adjustment Time (A) Cash“Actual Transaction Expenses”), (B) Indebtedness of the Company and the PCsamount, if any, by which the Initial Cash Purchase Price and the corresponding Initial Purchase Price is to be adjusted as a result thereof (C) such statement setting forth Actual Transaction Costs Expenses together with the Actual Indebtedness and (D) Net Working Capitalany adjustment to the Initial Cash Purchase Price and the corresponding Initial Purchase Price therefrom, and (ii) a calculation, based upon the foregoing amounts, “Closing Statement”). During the preparation by Purchaser of the Closing Cash Payment Amount Statement, Purchaser and the sum of (A) such amount, less (B) the Closing Cash Payment Amount set forth in the Company Closing Statement (such sum, whether positive or negative, the “Adjustment Amount”), together with reasonable supporting detail of each of the calculations set forth in the Buyer Closing Statement. The Buyer Closing Statement its agents shall be prepared in a manner consistent with the terms hereof and GAAP as reflected, and consistently applied, in the Company’s fiscal year 2020 combined audited financial statements, and (ii) shall not otherwise include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or arising from any act, decision or event occurring at or after the Closing, including any liabilities or obligations incurred or arranged by or on behalf of the Buyer or its Affiliates in connection with the transactions contemplated by this Agreement (including any fees payable to any financing institution). For the avoidance of doubt, the receipt by Buyer or its Affiliates of notice after the Closing of an event that occurred prior to the Closing shall not prevent Buyer from including any changes in assets or liabilities resulting from the event. (b) Following delivery of the Buyer Closing Statement and until the final determination of the Adjustment Amount, Buyer and its Subsidiaries (including the Company) shall (i) permit Seller Representative and its Representatives to have reasonable access, during normal business hours and upon reasonable noticeprovided, to the extent in the possession or control of the Sellers or their Affiliates, with such access to the financial books and records of the Company and (ii) provide Seller Representative and its Representatives reasonable access, during normal business hours and upon reasonable notice, to the employees and advisors of Buyer and its Subsidiaries (including including, for the Company) involved avoidance of doubt, Outdoors LLC), as well as any relevant work papers (provided that any accountants shall not be obliged to make any work papers available to the except in the preparation of the Buyer Closing Statement, provided in each case that accordance with customary disclosure procedures and then only after such Person has signed a customary agreement relating to such access does not unreasonably disrupt to work papers in form and substance reasonably acceptable to such accountants) as it may reasonably request to enable it to evaluate the normal operations calculations of Buyer or Estimated Indebtedness and Estimated Transaction Expenses prepared by the Company. The Buyer Closing Statement Without the Sellers’ Representative’s written consent, Purchaser shall be conclusive, final and binding on the Parties unless Seller Representative delivers to Buyer within thirty (30) days after receipt of the Buyer Closing Statement a written notice (a “Dispute Notice”) asserting objections to the calculations set forth therein and setting forth the resulting calculation of the Adjustment Amount based on such objections (collectively, the “Disputed Items”) with reasonable supporting detail as to such Disputed Items and certifying that the Disputed Items are being disputed in good faith. (c) If a Dispute Notice is delivered to Buyer, then Buyer and Seller Representative shall, for a period of forty-five (45) days following delivery of the Dispute Notice to Buyer, attempt in good faith to resolve the Disputed Items and all such discussions and communications related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. Any Disputed Items agreed to by Buyer and Seller Representative in writing, together with any items or calculations set forth in the Buyer Closing Statement not disputed or objected to by Seller Representative shall be conclusive, final and binding on the Parties absent manifest error. (d) If, at the end of the forty-five (45) day period following the delivery of the Dispute Notice, Buyer and Seller Representative have been unable to resolve the Disputed Items, Buyer or Seller Representative may, upon written notice to the other, refer all matters that remain in dispute with respect to the Dispute Notice (the “Unresolved Matters”) to RSM US LLP, or, if RSM US LLP is unwilling to serve in such capacity, to a mutually agreeable independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company. If Buyer and Seller Representative are unable to jointly select such independent accounting firm within ten (10) days after such forty-five (45) day period, Buyer, on the one hand, and Seller Representative, on the other hand, will each select an independent accounting firm of recognized national or regional standing and each such selected accounting firm will select a third independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company; provided, however, that if either Buyer, on the one hand, or Seller Representative, on the other hand, fails to select such independent accounting firm during the ten (10) day period, then the independent accounting firm selected by the other Party will be the independent accounting firm selected for the purposes hereof (such selected independent accounting firm, whether pursuant to this sentence or the preceding sentence, the “Independent Accountant”). If one or more Unresolved Matters are submitted to the Independent Accountant for resolution, Buyer and Seller Representative shall enter into a customary engagement letter with, and, to the extent necessary, will waive any conflicts with, the Independent Accountant at the time such dispute is submitted to the Independent Accountant and shall cooperate with the Independent Accountant in connection with its determination pursuant to this Section 2.6. Within ten (10) Business Days after the Independent Accountant has been retained, each of Buyer and Seller Representative shall furnish, at its own expense, to the Independent Accountant and substantially simultaneously to the other a written statement of its position with respect to each Unresolved Matter. Within five (5) Business Days after the expiration of such ten (10) Business Day period, each of Buyer and Seller Representative may deliver to the Independent Accountant its response to the other’s position on each Unresolved Matter (provided, that it delivers a copy thereof substantially simultaneously to the other). With each submission, each of Buyer and Seller Representative may also furnish to the Independent Accountant such other information and documents as it deems relevant or such information and documents as may be requested by the Independent Accountant (provided, that it delivers a copy thereof substantially simultaneously to the other). The Independent Accountant may, at its discretion, conduct one or more conferences (whether in person or by teleconference or videoconference) concerning the disagreement and each of Buyer and Seller Representative shall have the right to present additional documents, materials and other information and to have present its Representatives at such conferences. (e) The Independent Accountant shall be directed to promptly, and in any event within thirty (30) days after its engagement, render its decision on modify the Unresolved Matters (and not on any other matter) in accordance with the terms hereof. The Independent Accountant’s determination, acting as an expert in accounting and not as an arbitrator, as to each Unresolved Matter shall be set forth in a written statement delivered to each of Buyer and Seller Representative, which shall include the Independent Accountant’s (i) determination as to the calculation of each of the Unresolved Matters and (ii) the resulting calculation of the Adjustment Amount, all of which shall be conclusive, final and binding on the Parties absent manifest error. In deciding any matter, the Independent Accountant (i) shall be bound by the provisions of this Section 2.6(e) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by Buyer in the Buyer Closing Statement or by Seller Representative in any amounts set forth therein after Purchaser first delivers the Dispute Notice or less than the lowest value for such item claimed by Buyer in the Buyer Closing Statement or by Seller Representative in to the Dispute Notice. The fees, costs and expenses of the Independent Accountant shall be paid by each of Seller Representative and Buyer based on the inverse proportion of the difference between the Unresolved Matter proposed by each of them and the Unresolved Matter as determined by the Independent Accountant. For example, if Seller Representative proposes that the value of an Unresolved Matter is $100,000 and Buyer proposes that value of the Unresolved Matter is $0 and if the Independent Accountant ultimately determines the value of the Unresolved Matter is $20,000, then the fees, costs and expenses of the Independent Accountant for determining the Unresolved Matter will be allocated 80% to Seller Representative and 20% to BuyerSellers’ Representative.

Determination of Post-Closing Adjustment. (a) No later than Promptly, but in any event within ninety (90) days after the Closing Date, Buyer Purchaser shall prepare and deliver to Seller the Sellers’ Representative (x) a statement consolidated balance sheet of the APN Entities as of the Determination Time (the “Buyer Closing StatementBalance Sheet”) and (y) a statement, duly certified by each of Purchaser and the chief financial officer of the Surviving Company as accurately setting forth Purchaser’s good faith determination of (i) a calculation of the amounts as of the Closing of (A) Cash, (Bii) the Sellers’ Transaction Expenses, (iii) Indebtedness as of the Company and the PCsClosing, (Civ) Transaction Costs Working Capital and (D) Net Working Capital, and (ii) a calculation, based upon the foregoing amounts, of the Closing Cash Payment Amount and the sum of (A) such amount, less (Bv) the Aggregate Adjusted Closing Cash Payment Amount set forth in the Company Closing Statement Consideration (such sum, whether positive or negativestatement, the “Adjustment AmountClosing Statement”), together with reasonable supporting detail of each of the calculations set forth in the Buyer Closing Statement. The Buyer Closing Statement shall be prepared based upon the facts and circumstances of the APN Entities as of the Determination Time in a manner consistent accordance with the terms hereof definitions as provided in this Agreement and GAAP as reflectedthe Agreed Accounting Principles. The Parties agree that this Section 1.13 and the preparation of the Closing Statement is not intended to permit the introduction of judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies different from those used by the Company in the preparation of the Latest Balance Sheet and in accordance with the Agreed Accounting Principles. If Purchaser fails to timely deliver a Closing Statement in accordance with this Section 1.13(a), then the Closing Estimate Certificate will be deemed to be the Closing Statement, and consistently applied, the Sellers’ Representative may deliver a Dispute Notice with respect thereto in the Company’s fiscal year 2020 combined audited financial statements, and (ii) shall not otherwise include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or arising from any act, decision or event occurring at or after the Closing, including any liabilities or obligations incurred or arranged by or on behalf of the Buyer or its Affiliates in connection accordance with the transactions contemplated by this Agreement (including any fees payable to any financing institutionSection 1.13(b). For the avoidance of doubt, the receipt by Buyer or its Affiliates of notice after the Closing of an event that occurred prior to the Closing shall not prevent Buyer from including any changes in assets or liabilities resulting from the event. (b) Following delivery If the Sellers’ Representative disagrees with any portion of the Buyer Purchaser’s determination of the Cash, Indebtedness, Working Capital, the Sellers’ Transaction Expenses and/or the Aggregate Adjusted Closing Consideration, in each case, as reflected on the Closing Statement or any portion of the Closing Balance Sheet, the Sellers’ Representative may, within forty-five (45) days after receipt of the Closing Statement and until the final determination Closing Balance Sheet, deliver a written notice (the “Dispute Notice”) to Purchaser setting forth the Sellers’ Representative’s calculation of the Adjustment Amount, Buyer and its Subsidiaries each disputed amount (including the Company) shall (i) permit Seller each an “Item of Dispute”). The Sellers’ Representative and its Representatives to agents, accountants, auditors and representatives shall have reasonable access, during normal business hours and upon reasonable notice, access to the all books and records and work papers (including those of Purchaser’s, XX Xxxxxxx’x and the Company APN Entities’ accountants and (iiauditors) provide Seller relating to the Closing Statement and the Closing Balance Sheet and all other items reasonably requested by the Sellers’ Representative or its agents, accountants, auditors or representatives, as applicable, as well as reasonable access to employees, accountants, auditors and representatives of Purchaser, XX Xxxxxxx and the APN Entities to assist the Sellers’ Representative and its Representatives agents, accountants, auditors and representatives in its and their review of such work papers, the Closing Statement and the Closing Balance Sheet. If Purchaser does not receive a Dispute Notice within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement and the Closing Balance Sheet, the Closing Statement and the Closing Balance Sheet shall be conclusive and binding upon each of the Parties. If Purchaser receives a Dispute Notice from the Sellers’ Representative within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement and the Closing Balance Sheet, Purchaser and the Sellers’ Representative shall use reasonable accessefforts to resolve each Item of Dispute, during normal business hours and upon reasonable noticeand, if any Item of Dispute is so resolved, the Closing Statement or the Closing Balance Sheet, as applicable, shall be modified to the employees extent necessary to reflect such resolution. If any Item of Dispute remains unresolved as of the thirtieth (30th) day after delivery by the Sellers’ Representative of the Dispute Notice, Purchaser and advisors the Sellers’ Representative shall jointly retain Xxxxx Xxxxxxxx LLP (the “Arbiter”) to resolve such remaining disagreement, it being understood that any item not included as an Item of Buyer and its Subsidiaries (including the Company) involved Dispute in the preparation Dispute Notice shall be conclusive and binding upon each of the Buyer Closing Statement, provided Parties as set forth in each case that such access does not unreasonably disrupt the normal operations of Buyer or the Company. The Buyer Closing Statement and the Closing Balance Sheet. Purchaser and the Sellers’ Representative shall be conclusive, final and binding on request that the Parties unless Seller Representative delivers Arbiter render a determination as to Buyer each unresolved Item of Dispute within thirty (30) days after receipt of the Buyer Closing Statement a written notice (a “Dispute Notice”) asserting objections to Arbiter’s retention, and Purchaser and the calculations set forth therein and setting forth the resulting calculation of the Adjustment Amount based on such objections (collectively, the “Disputed Items”) with reasonable supporting detail as to such Disputed Items and certifying that the Disputed Items are being disputed in good faith. (c) If a Dispute Notice is delivered to Buyer, then Buyer and Seller Sellers’ Representative shall, for a period and Purchaser shall cause XX Xxxxxxx and the APN Entities and each of forty-five their respective agents, accountants, auditors and representatives to, cooperate fully with the Arbiter so as to enable it to make such determination as quickly and accurately as reasonably practicable, including by the provision by Purchaser, XX Xxxxxxx and the APN Entities of all books and records and work papers (45including those of XX Xxxxxxx’x and the APN Entities’ accountants and auditors) days following delivery of relating to the Dispute Notice to Buyer, attempt in good faith to resolve Closing Statement or the Disputed Items Closing Balance Sheet and all such discussions and communications related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. Any Disputed Items agreed to by Buyer and Seller Representative in writing, together with any other items or calculations set forth in the Buyer Closing Statement not disputed or objected to by Seller Representative shall be conclusive, final and binding on the Parties absent manifest error. (d) If, at the end of the forty-five (45) day period following the delivery of the Dispute Notice, Buyer and Seller Representative have been unable to resolve the Disputed Items, Buyer or Seller Representative may, upon written notice to the other, refer all matters that remain in dispute with respect to the Dispute Notice (the “Unresolved Matters”) to RSM US LLP, or, if RSM US LLP is unwilling to serve in such capacity, to a mutually agreeable independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company. If Buyer and Seller Representative are unable to jointly select such independent accounting firm within ten (10) days after such forty-five (45) day period, Buyer, on the one hand, and Seller Representative, on the other hand, will each select an independent accounting firm of recognized national or regional standing and each such selected accounting firm will select a third independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company; provided, however, that if either Buyer, on the one hand, or Seller Representative, on the other hand, fails to select such independent accounting firm during the ten (10) day period, then the independent accounting firm selected by the other Party will be the independent accounting firm selected for the purposes hereof (such selected independent accounting firm, whether pursuant to this sentence or the preceding sentence, the “Independent Accountant”). If one or more Unresolved Matters are submitted to the Independent Accountant for resolution, Buyer and Seller Representative shall enter into a customary engagement letter with, and, to the extent necessary, will waive any conflicts with, the Independent Accountant at the time such dispute is submitted to the Independent Accountant and shall cooperate with the Independent Accountant in connection with its determination pursuant to this Section 2.6. Within ten (10) Business Days after the Independent Accountant has been retained, each of Buyer and Seller Representative shall furnish, at its own expense, to the Independent Accountant and substantially simultaneously to the other a written statement of its position with respect to each Unresolved Matter. Within five (5) Business Days after the expiration of such ten (10) Business Day period, each of Buyer and Seller Representative may deliver to the Independent Accountant its response to the other’s position on each Unresolved Matter (provided, that it delivers a copy thereof substantially simultaneously to the other). With each submission, each of Buyer and Seller Representative may also furnish to the Independent Accountant such other information and documents as it deems relevant or such information and documents as may be reasonably requested by the Independent Accountant Arbiter (provided, that it delivers in each case in such a copy thereof substantially simultaneously manner so as not to the otherwaive or eliminate any privilege applicable to any such information). The Independent Accountant may, at its discretion, conduct one or more conferences (whether in person or Arbiter shall consider only those Items of Dispute that remain unresolved by teleconference or videoconference) concerning Purchaser and the disagreement and each of Buyer and Seller Representative shall have the right to present additional documents, materials and other information and to have present its Representatives at such conferences. (e) The Independent Accountant shall be directed to promptly, and in any event within thirty (30) days after its engagement, render its decision on the Unresolved Matters (and not on any other matter) in accordance with the terms hereof. The Independent Accountant’s determination, acting as an expert in accounting and not as an arbitrator, as to each Unresolved Matter shall be set forth in a written statement delivered to each of Buyer and Seller Sellers’ Representative, which shall include the Independent Accountant’s (i) determination as to the calculation of each of the Unresolved Matters and (ii) the resulting calculation of the Adjustment Amount, all of which shall be conclusive, final and binding on the Parties absent manifest error. In deciding resolving any matterItem of Dispute, the Independent Accountant (i) shall be bound by the provisions of this Section 2.6(e) and (ii) Arbiter may not assign a value to any item greater than the greatest value value, or less than the smallest value, for such item claimed by Buyer in Purchaser on the Buyer Closing Statement and the Closing Balance Sheet or by Seller Representative in the Dispute Notice or less than the lowest value for such item claimed by Buyer in the Buyer Closing Statement or by Seller Sellers’ Representative in the Dispute Notice. The Arbiter’s determination(s) shall be based upon the definitions of Cash, Sellers’ Transaction Expenses, Indebtedness, Working Capital and Aggregate Adjusted Closing Consideration (as applicable) included herein and the Agreed Accounting Principles, and shall not be an independent review. The Arbiter’s determination of each Item of Dispute submitted to it shall be in writing, shall conform with this Section 1.13 and shall be conclusive and binding upon each of the Parties, and the Closing Statement and the Closing Balance Sheet shall be modified to the extent necessary to reflect such determination(s). The Arbiter shall allocate its fees, costs and expenses between Purchaser, on the one hand, and the Sellers’ Representative (on behalf of the Independent Accountant shall be paid by each of XX Xxxxxxx Seller Representative and Buyer based the Unitholders (other than XX Xxxxxxx)), on the inverse proportion other hand, based upon the percentage which the portion of the difference between contested amount not awarded to each such Party bears to the Unresolved Matter proposed amount actually contested by each of them and the Unresolved Matter as determined by the Independent Accountantsuch Party. For example, if Seller the Sellers’ Representative proposes claims in a Dispute Notice that the value Items of an Unresolved Matter is Dispute are in the aggregate $100,000 1,000 greater than the amounts determined for such items by Purchaser in the Closing Statement, and Buyer proposes that value the Arbiter ultimately determines to award the Sellers’ Representative $600 of the Unresolved Matter is $0 and if the Independent Accountant ultimately determines the value of the Unresolved Matter is $20,0001,000 contested, then the fees, costs and expenses of the Independent Accountant for determining the Unresolved Matter Arbiter will be allocated 8060% (i.e., 600 ÷ 1,000) to Purchaser and 40% (i.e., 400 ÷ 1,000) to the Sellers’ Representative (on behalf of the XX Xxxxxxx Seller and the Unitholders (other than XX Xxxxxxx)). Cash, Sellers’ Transaction Expenses, Indebtedness as of the Closing and Working Capital, in each case as finally determined pursuant to this Section 1.13, are referred to herein as the “Actual Cash,” “Actual Sellers’ Transaction Expenses,” “Actual Indebtedness” and the “Actual Working Capital,” respectively. The Sellers’ Representative shall promptly revise the Payment Schedule to reflect the final determination of such amounts. (c) If the Aggregate Adjusted Closing Consideration as finally determined pursuant to Section 1.13(b) is greater than the Aggregate Estimated Closing Consideration, then, within five (5) Business Days after the determination of Aggregate Adjusted Closing Consideration, (A) Purchaser shall pay, by wire transfer of immediately available funds, to (1) an account designated in writing by the XX Xxxxxxx Seller, the portion of such excess allocable to the XX Xxxxxxx Seller in accordance with Section 1.1 and 20% the Payment Schedule, and (2) each holder of Acquired Units that has delivered a Letter of Transmittal in accordance with Sections 1.8(a) or 1.8(b), to Buyerthe account set forth in such Letter of Transmittal, the portion of such excess allocable to such holder in accordance with Section 1.7(a) and the Payment Schedule, and (B) Purchaser and Sellers’ Representative shall jointly instruct the Escrow Agent to deliver to (1) an account designated in writing by the XX Xxxxxxx Seller, the portion of the Escrow Funds allocable to the XX Xxxxxxx Seller in accordance with Section 1.1 and the Payment Schedule, and (2) each holder of Acquired Units that has delivered a Letter of Transmittal in accordance with Sections 1.8(a) or 1.8(b), to the account set forth in such Letter of Transmittal, the portion of the Escrow Funds allocable to such holder in accordance with Section 1.7(a) and the Payment Schedule. (d) If the Aggregate Adjusted Closing Consideration as finally determined pursuant to Section 1.13(b) is less than the Aggregate Estimated Closing Consideration, then, within five (5) Business Days after the determination of the Aggregate Adjusted Closing Consideration, Purchaser and the Sellers’ Representative shall jointly instruct the Escrow Agent to (A) deliver, by wire transfer of immediately available funds, to an account designated in writing by the Purchaser from the Escrow Fund, an amount equal to the lesser of (x) such difference and (y) the then remaining balance of the Escrow Fund and (B) after giving effect to the delivery set forth in clause (A), deliver, by wire transfer of immediately available funds, to (1) an account designated in writing by the XX Xxxxxxx Seller, the portion of the then remaining balance of the Escrow Fund (if any) allocable to the XX Xxxxxxx Seller in accordance with Section 1.1 and the Payment Schedule, and (2) each holder of Acquired Units that has delivered a Letter of Transmittal in accordance with Sections 1.8(a) or 1.8(b), to the account set forth in such Letter of Transmittal, the portion of the then remaining balance of the Escrow Fund (if any) allocable to such holder in accordance with Section 1.7(a) and the Payment Schedule. (e) Notwithstanding anything to the contrary in this Agreement, (i) the XX Xxxxxxx Seller and the Unitholders shall have no liability to Purchaser or any of its Affiliates for any adjustment amount pursuant to this Section 1.13 except to the extent of the then remaining balance of the Escrow Fund and (ii) recovery from the Escrow Fund shall be the sole and exclusive remedy available to Purchaser and any of its Affiliates for any claims arising out of or relating to this Section 1.13, and neither Purchaser nor the Surviving Company nor any of their respective Affiliates shall have any claim against XX Xxxxxxx Seller or any Unitholder in respect thereof. Notwithstanding the foregoing, and for the avoidance of doubt, nothing in this Section 1.13(e) shall limit in any respect Purchaser’s rights under Section 7.7(h). The Parties agree that any amount paid under this Section 1.13 shall be treated as an adjustment to the Aggregate Final Consideration for Tax purposes and, except to the extent required by applicable Tax law, not to take any position inconsistent with such treatment on any Tax Return.