Final Closing Statement. Within sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to the Equityholder Representative a closing statement (the “Closing Statement”), which will reflect Purchaser’s determination of (i) the Transaction Expenses, (ii) the Closing Working Capital, (iii) the Closing Indebtedness, and (iv) the Closing Cash, in each case, in reasonable detail prepared in accordance with the relevant definitions and schedules in this Agreement, and shall not 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 hereby or after the Closing or otherwise at the direction of the Purchaser. The Parties agree that the purpose of this provision is to ensure that the preparation of the Closing Statement reflects only Purchaser’s determination of the items set forth therein in accordance with this Agreement, and does not permit the introduction of different accounting methods, policies, principles, or practices beyond those described in the relevant definitions and schedules in this Agreement. (i) If the Equityholder Representative disagrees with Purchaser’s determination of the Transaction Expenses, the Closing Working Capital, the Closing Indebtedness or the Closing Cash, in each case, as reflected on the Closing Statement, the Equityholder Representative may, within forty-five (45) days after delivery by Purchaser of the Closing Statement, deliver a written notice (the “Notice of Disagreement”) to Purchaser setting forth in reasonable detail, (i) each item of dispute (each an “Item of Dispute”), (ii) the dollar amount and the basis for each such Item of Dispute and (iii) the Equityholder Representative’s calculation of each such Item of Dispute. If Purchaser does not receive a Notice of Disagreement within forty-five (45) days after delivery by Purchaser of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties. (ii) If Purchaser receives a Notice of Disagreement from the Equityholder Representative within forty-five (45) days after delivery by Purchaser of the Closing Statement, Purchaser and the Equityholder Representative shall attempt in good faith to resolve each Item of Dispute (and all such discussions related thereto shall, unless otherwise agreed in writing by Purchaser and the Equityholder Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), and, if any Item of Dispute is so resolved, the Closing Statement and Notice of Disagreement 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 timely delivery by the Equityholder Representative of the Notice of Disagreement, Purchaser and the Equityholder Representative shall jointly retain Xxxx Xxxxx (or, if such firm is unable or unwilling to serve in such capacity, such other accounting firm upon which Purchaser and the Equityholder Representative mutually agree in writing) (the “Accountants”) to resolve such remaining disagreement (acting as an expert and not as an arbitrator), it being understood that any item not included as an Item of Dispute in the Notice of Disagreement in the form delivered to the Accountants shall be conclusive and binding upon each of the Parties as set forth on the Closing Statement. Purchaser and the
Appears in 1 contract
Samples: Merger Agreement (Appfolio Inc)
Final Closing Statement. Within sixty (60) days after The actual and final amount of Cash as of the Closing Date, Purchaser shall prepare and deliver to the Equityholder Representative a closing statement (the “Final Cash Amount”), the actual and final amount of Adjusted Net Working Capital as of the Closing (the “Final Adjusted Net Working Capital Amount”), the actual and final amount of Indebtedness (including the actual and final amount of Paid-Off Indebtedness and the actual and final amount of Retained Indebtedness) (the “Final Indebtedness Amount”), and the actual and final amount of Company Transaction Expenses outstanding and unpaid as of the Closing (the “Final Company Transaction Expense Amount”) (collectively, the “Final Closing Statement”), which ) will reflect Purchaser’s determination of (i) the Transaction Expenses, (ii) the Closing Working Capital, (iii) the Closing Indebtedness, and (iv) the Closing Cash, in each case, in reasonable detail prepared in accordance with the relevant definitions and schedules in this Agreement, and shall not 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 hereby or after the Closing or otherwise at the direction of the Purchaser. The Parties agree that the purpose of this provision is to ensure that the preparation of the Closing Statement reflects only Purchaser’s determination of the items set forth therein in accordance with this Agreement, and does not permit the introduction of different accounting methods, policies, principles, or practices beyond those described in the relevant definitions and schedules in this Agreement.be:
(i) If as set forth in the Equityholder Representative disagrees with Purchaser’s determination of Estimated Closing Statement and the Transaction ExpensesEstimated NWC Statement, if Buyer fails to timely deliver the Preliminary Closing Working Capital, the Closing Indebtedness or the Closing Cash, in each caseStatement and Seller so elects, as reflected on the Closing Statement, the Equityholder Representative may, within forty-five (45) days after delivery by Purchaser of the Closing Statement, deliver a written notice (the “Notice of Disagreement”) to Purchaser setting set forth in reasonable detail, clause (ix) each item of dispute (each an “Item of Dispute”Section 2.04(a), (ii) the dollar amount and the basis for each such Item of Dispute and (iii) the Equityholder Representative’s calculation of each such Item of Dispute. If Purchaser does not receive a Notice of Disagreement within forty-five (45) days after delivery by Purchaser of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties.;
(ii) If Purchaser receives a Notice of Disagreement from as set forth in the Equityholder Representative within forty-five (45) days after delivery by Purchaser of the Preliminary Closing Statement, Purchaser and with respect to those items for which Seller fails to deliver a Statement Objection during the Equityholder Representative shall attempt Response Period;
(iii) as set forth in good faith the Statement Objection, with respect to resolve each Item of Dispute those items not timely submitted to the CPA Firm for final resolution pursuant to Section 2.04(c)(ii);
(and all such discussions related thereto shalliv) as determined by the CPA Firm, unless otherwise with respect to any items timely submitted to the CPA Firm for final resolution pursuant to Section 2.04(c)(ii); or
(v) notwithstanding the foregoing, as mutually agreed in writing by Purchaser Xxxxx and Xxxxxx. The Final Closing Statement shall set forth the Equityholder Representative, be governed by Rule 408 amount and calculation of the Federal Rules “Final Seller Proceeds,” which shall be an amount equal to the result of Evidence (A) the Base Purchase Price, (B) plus the Final Cash Amount, (C) plus the amount, if any, by which the Final Adjusted Net Working Capital Amount is greater than the Adjusted Net Working Capital Target provided that such amount shall be capped at $2,000,000 and any applicable similar state rule))excess beyond $2,000,000 shall be disregarded for purposes of this Article II (such amount, andas so capped, the “Final Net Working Capital Excess”) or minus the amount, if any Item of Dispute any, by which the Final Adjusted Net Working Capital Amount is so resolved, less than the Closing Statement and Notice of Disagreement Adjusted Net Working Capital Target provided that such amount shall be modified to the extent necessary to reflect such resolution. If capped at $2,000,000 and any Item of Dispute remains unresolved as of the thirtieth (30th) day after timely delivery by the Equityholder Representative of the Notice of Disagreement, Purchaser and the Equityholder Representative shall jointly retain Xxxx Xxxxx (or, if such firm is unable or unwilling to serve in such capacity, such other accounting firm upon which Purchaser and the Equityholder Representative mutually agree in writing) (the “Accountants”) to resolve such remaining disagreement (acting as an expert and not as an arbitrator), it being understood that any item not included as an Item of Dispute in the Notice of Disagreement in the form delivered to the Accountants deficit exceeding $2,000,000 shall be conclusive disregarded for purposes of this Article II, (D) minus the Final Indebtedness Amount, and binding upon each of (E) minus the Parties as set forth on the Closing Statement. Purchaser and theFinal Company Transaction Expense Amount.
Appears in 1 contract
Final Closing Statement. Within sixty (60a) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review.
(b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a)), Buyer will prepare and deliver, or cause to be prepared and delivered, based on the Closing Accounts, to Seller:
(i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of:
(A) Net Working Capital (“Closing Net Working Capital”),
(B) the aggregate amount of all Indebtedness (“Closing Indebtedness”),
(C) the aggregate amount of Cash of the Company Group (“Closing Cash”), and
(D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, Purchaser shall prepare and deliver except for Closing Transaction Expenses, without giving effect to the Equityholder Representative Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date;
(ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and
(iii) on the basis of the foregoing, a closing statement calculation of the Closing Cash Purchase Price (together with the items referred to in clauses (i) and (ii) above, the “Final Closing Statement”), which will reflect Purchaser’s determination of (i) the Transaction Expenses, (ii) the Closing Working Capital, (iii) the Closing Indebtedness, and (iv) the Closing Cash, in each case, in reasonable detail shall be prepared in accordance with the relevant Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement. If for any reason Buyer fails to deliver the Final Closing Statement in accordance with this Section 2.06, then the Preliminary Closing Statement delivered by Seller to Buyer pursuant to Section 2.05 shall be considered for all purposes of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i).
(c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses and schedules Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used in this Section 2.06; provided, however, that:
(i) the Final Closing Statement (and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with the Transaction Accounting Principles;
(ii) except as set forth in the following clause (iii), the Final Closing Statement (and any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement);
(iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and
(iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to Section 2.05, and the purchase price adjustment to be made pursuant to this Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall not include exclude the effect of any changes act, decision, change in assets circumstance, development or liabilities as a result of purchase accounting adjustments event arising or other changes arising from or resulting as a consequence of the transactions contemplated hereby occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other.
(d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing or otherwise at the direction Statement prepared pursuant to Section 2.06(b), Seller may, within 30 days after delivery of the Purchaser. The Parties agree that the purpose of this provision is to ensure that the preparation of the Final Closing Statement reflects only Purchaser’s determination of the items set forth therein in accordance with this Agreement, and does not permit the introduction of different accounting methods, policies, principles, or practices beyond those described in the relevant definitions and schedules in this Agreement.
(i) If the Equityholder Representative disagrees with Purchaser’s determination of the Transaction Expenses, the Closing Working Capital, the Closing Indebtedness or the Closing Cash, in each case, as reflected on the Closing Statement, the Equityholder Representative may, within forty-five (45) days after delivery by Purchaser of the Closing StatementSection 2.06(b), deliver a written notice in writing (the a “Notice of Disagreement”) to Purchaser setting forth Buyer disagreeing with the Final Closing Statement and any calculations included therein. Any such Notice of Disagreement shall specify in reasonable detaildetail the particulars of those items or amounts as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant to Section 2.06(b).
(ie) each item of dispute (each an “Item of Dispute”), (ii) the dollar amount and the basis for each such Item of Dispute and (iii) the Equityholder Representative’s calculation of each such Item of Dispute. If Purchaser does not receive a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within fortysuch 15-five (45) days after delivery day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Purchaser Seller in the Notice of Disagreement and the amount of the Closing StatementNet Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the Closing Statement amounts so determined shall be conclusive final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review.
(f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review.
(g) Each party shall promptly make available to the other party any and all submissions provided to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final and binding upon each Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the PartiesAccounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator.
(h) The cost of any dispute resolution pursuant to this Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party.
(i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with Section 2.06(j).
(j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date:
(i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing.
(ii) If Purchaser receives the Adjustment Amount is a Notice negative number (the absolute value of Disagreement from such amount, the Equityholder Representative within forty-five (45) days after delivery by Purchaser of the Closing Statement, Purchaser and the Equityholder Representative shall attempt in good faith to resolve each Item of Dispute (and all such discussions related thereto shall, unless otherwise agreed in writing by Purchaser and the Equityholder Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)“Decrease Amount”), and, if any Item of Dispute is so resolved, then the Closing Statement and Notice of Disagreement Cash Consideration shall be modified reduced by an amount equal to the extent necessary Decrease Amount and Seller shall pay or cause to reflect such resolution. If any Item of Dispute remains unresolved as of be paid to Buyer the thirtieth Decrease Amount (30thif any) day after timely delivery in immediately available funds by wire transfer to the Equityholder Representative of the Notice of Disagreement, Purchaser and the Equityholder Representative shall jointly retain Xxxx Xxxxx (or, if such firm is unable account or unwilling to serve in such capacity, such other accounting firm upon which Purchaser and the Equityholder Representative mutually agree accounts designated by Buyer in writing) (the “Accountants”) to resolve such remaining disagreement (acting as an expert and not as an arbitrator), it being understood that any item not included as an Item of Dispute in the Notice of Disagreement in the form delivered to the Accountants shall be conclusive and binding upon each of the Parties as set forth on the Closing Statement. Purchaser and the.
Appears in 1 contract
Final Closing Statement. Within sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to the Equityholder Representative a closing statement (the “Closing Statement”), which will reflect Purchaser’s determination of (i) the Transaction Expenses, Within one-hundred and twenty (ii120) days following the Closing Working Capital, (iii) but no later than December 15th of the year in which the Closing Indebtednessoccurs), Equitable and Investor will jointly prepare a final closing statement reasonably satisfactory in form and substance to Equitable and Investor (ivthe "FINAL CLOSING STATEMENT") setting forth the Closing Cash, in each case, in reasonable detail prepared in accordance with the relevant definitions and schedules in this Agreement, and shall not 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 hereby or after the Closing or otherwise at the direction of the Purchaser. The Parties agree that the purpose of this provision is to ensure that the preparation of the Closing Statement reflects only Purchaser’s final determination of the items set forth therein adjustments and prorations provided for herein; PROVIDED, HOWEVER, the aforementioned one-hundred and twenty (120) day period and December 15th date shall not apply to and such Final Closing Statement shall not address (x) Arrears (as hereinafter defined) and (y) any adjustments which have not been finally reconciled as of such dates on account of additional rent, however characterized, under each Lease, including without limitation, real estate taxes, electrical charges, utility costs and operating expenses (collectively, "ADDITIONAL RENTS") billed to tenants for the calendar year in accordance with this Agreement, which the Closing occurs (both on a monthly basis and does not permit the introduction of different accounting methods, policies, principles, or practices beyond those described in the relevant definitions and schedules in this Agreement.
(i) If aggregate). The net amount due the Equityholder Representative disagrees with Purchaser’s determination of the Transaction Expenses, the Closing Working Capital, the Closing Indebtedness Partnership or the Closing Cash, in each caseFee Owner, as reflected on the case may be, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, the Equityholder Representative may, within forty-five (45) days after delivery by Purchaser of the Closing Statement, deliver a written notice (the “Notice of Disagreement”) to Purchaser setting shall be readjusted and paid as set forth in reasonable detail, (i) each item the remainder of dispute (each an “Item of Dispute”this SECTION 4.4(b), (ii) the dollar amount and the basis for each such Item of Dispute and (iii) the Equityholder Representative’s calculation of each such Item of Dispute. If Purchaser does not receive a Notice of Disagreement within forty-five (45) days after delivery by Purchaser of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties.
(ii) If Purchaser receives a Notice of Disagreement from Once the Equityholder Representative within fortyPreliminary Net Balance is re-five (45) days after delivery by Purchaser of calculated in the Final Closing Statement, Purchaser then the difference between the Preliminary Net Balance and such revised net amount (the "REVISED NET BALANCE") shall be dealt with as follows: (x) if the Revised Net Balance is in favor of the Partnership, then Fee Owner shall pay such amount to Equitable; and (y) if the Revised Net Balance is in favor of Fee Owner, then Equitable shall pay such amount to the Investor.
(iii) No later than the date that is eighteen (18) months from the Closing Date (the "FINAL RECONCILIATION DATE"), Fee Owner and the Equityholder Representative Partnership shall attempt apportion pursuant to the provisions of this SECTION 4.4 and pay to each other (based upon each party's period of ownership during the calendar year in good faith to resolve each Item of Dispute (and all such discussions related thereto shall, unless otherwise agreed in writing by Purchaser and which the Equityholder Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)Closing occurs), andas the case may be, if any Item over- or under-payments on account of Dispute Arrears and Additional Rents therefor, as follows: if, after aggregating all Arrears recovered by Fee Owner or Equitable and making the final reconciliation of all Additional Rents it is so resolved, finally determined that (x) the Closing Statement and Notice of Disagreement shall be modified Reconciliation Advance (as hereinafter defined) over-estimated the amount owed to the extent necessary to reflect Partnership on account of such resolution. If any Item of Dispute remains unresolved as of the thirtieth (30th) day after timely delivery by the Equityholder Representative of the Notice of Disagreement, Purchaser and the Equityholder Representative shall jointly retain Xxxx Xxxxx (or, if such firm is unable or unwilling to serve in such capacity, such other accounting firm upon which Purchaser and the Equityholder Representative mutually agree in writing) (the “Accountants”) to resolve such remaining disagreement (acting as an expert and not as an arbitrator), it being understood that any item not included as an Item of Dispute in the Notice of Disagreement in the form delivered to the Accountants shall be conclusive and binding upon each of the Parties as set forth on the Closing Statement. Purchaser and the24
Appears in 1 contract
Final Closing Statement. Within sixty Not later than forty-five (6045) days Business Days after the Closing Date, Purchaser Seller shall prepare and deliver to Purchaser a statement, as of the Equityholder Representative a closing statement (the “Closing Statement”), which will reflect Purchaser’s determination Close of (i) the Transaction Expenses, (ii) Business on the Closing Working Capital, (iii) the Closing IndebtednessDate, and (iv) the Closing Cash, in each case, in reasonable detail prepared in accordance with GAAP applied consistently with the relevant definitions and schedules practices used in this Agreement, and shall not 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 hereby or after the Closing or otherwise at the direction of the Purchaser. The Parties agree that the purpose of this provision is to ensure that the preparation of the Closing Statement reflects only Purchaser’s determination except as and to the extent that this Agreement provides for different valuation methodologies for particular categories of Purchased Assets and Assumed Liabilities, showing the Aggregate Asset Amount and the calculation thereof, reflecting the Purchased Assets and Assumed Liabilities, as of the items set forth therein in accordance with this Agreement, and does not permit the introduction Close of different accounting methods, policies, principles, or practices beyond those described in the relevant definitions and schedules in this Agreement.
(i) If the Equityholder Representative disagrees with Purchaser’s determination of the Transaction Expenses, Business on the Closing Working Capital, the Closing Indebtedness or the Closing Cash, in each case, Date (as reflected on the Closing Statement, the Equityholder Representative may, within forty-five (45) days after delivery by Purchaser of the Closing Statement, deliver a written notice (the “Notice of Disagreement”) to Purchaser setting forth in reasonable detail, (i) each item of dispute (each an “Item of Dispute”Final Schedules), (ii) the dollar amount and the basis for each such Item of Dispute and (iii) the Equityholder Representative’s calculation of each such Item of Dispute. If Purchaser does not receive a Notice of Disagreement within forty-five (45) days after delivery by Purchaser of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties.
(ii) If Purchaser receives a Notice of Disagreement from the Equityholder Representative within forty-five (45) days after delivery by Purchaser of the Closing Statement, Purchaser and the Equityholder Representative shall attempt in good faith to resolve each Item of Dispute (and all such discussions related thereto shall, unless otherwise agreed in writing by Purchaser and the Equityholder Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), and, if any Item of Dispute is so resolved, the Closing Statement and Notice of Disagreement 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 timely delivery by the Equityholder Representative of the Notice of Disagreement, Purchaser and the Equityholder Representative shall jointly retain Xxxx Xxxxx (or, if such firm is unable or unwilling to serve in such capacity, reflecting such other accounting firm upon which Purchaser and the Equityholder Representative mutually agree adjustments as are appropriate in writingaccordance with Section 3.3(b) (the “AccountantsFinal Closing Statement”). Purchaser shall provide Seller and its officers, directors, employees, agents and advisors (including attorneys and accountants) (collectively, “Representatives”) to resolve such remaining disagreement (acting as an expert and not as an arbitrator), it being understood that any item not included as an Item of Dispute in the Notice of Disagreement in the form delivered reasonable access to the Accountants shall be conclusive premises, books and binding upon each records, and appropriate personnel of the Parties as set forth on Transferred Business reasonably requested by Seller for purposes of the preparation of the Final Closing Statement. Purchaser shall instruct its Representatives (including the Transferred Business Employees) to cooperate with, and thepromptly and completely respond to all reasonable requests and inquiries of, Seller and its Representatives, and, upon execution of a customary access letter if required by Purchaser’s outside accountants, to provide Seller and its Representatives with reasonable access, upon reasonable notice, to all relevant work papers, schedules, memoranda and other documents prepared by Purchaser or its Affiliates or its Representatives (including its outside accountants) to the extent such materials have been prepared by Purchaser or its Affiliates or its Representatives and relate to the calculation of the Aggregate Asset Amount, Purchased Assets and/or the Assumed Liabilities in any respect (all such information shall be deemed Information of Purchaser and therefore subject to Section 7.5).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Northwest Bancshares, Inc.)
