Determination of Purchase Price The Securities Administrator will be responsible for determining the Purchase Price for any Mortgage Loan that is sold by the Trust or with respect to which provision is made for the escrow of funds pursuant to this Section 2.03 and shall at the time of any purchase or escrow certify such amounts to the Depositor; provided that the Securities Administrator may consult with the Servicer to determine the Purchase Price unless the Servicer is the Purchaser of such Mortgage Loan. If, for whatever reason, the Securities Administrator shall determine that there is a miscalculation of the amount to be paid to the Trust, the Securities Administrator shall from monies in a Distribution Account return any overpayment that the Trust received as a result of such miscalculation to the applicable Purchaser upon the discovery of such overpayment, and the Securities Administrator shall collect from the applicable Purchaser for deposit to the Securities Account any underpayment that resulted from such miscalculation upon the discovery of such underpayment. Recovery may be made either directly or by set-off of all or any part of such underpayment against amounts owed by the Trust to such Purchaser.
Assets to be Purchased At Closing (as hereinafter defined) subject to the terms and conditions of this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from Seller, all or substantially all of Seller's assets utilized in the operation of Seller's Boulder Facility (the "Business"), free and clear of all liens, encumbrances, and charges (the "Assets"), which Assets shall include without limitation the following:
(a) all inventory owned, used or held for use with respect to Seller's Business, including parts, materials, packaging, works in progress and finished goods located at Seller's Boulder Facility at the close of business on the date of Closing, as hereinafter defined on the attached Schedule 1(a) (the "Inventory");
(b) all of Seller's right, title and interest in and to those certain fixed assets that are described on the attached Schedule 1(b) (the "Fixed Assets");
(c) all of Seller's right, title and interest in and to any and all licenses and permits, to the extent assignable, whether state, federal, county, municipal, or otherwise material to the operation of the Boulder Facility, leases, equipment warranties, maintenance contracts, service contacts and other commitments as may be assumed in writing by Buyer or as set forth on the attached Schedule 1(c); and
(d) all of Seller's right, title and interest in and to the general intangibles and goodwill associated with the operation of the Assets at Seller's Boulder Facility, including all telephone numbers used by Seller at the Boulder Facility, access to certain books and records of Seller which pertain to the Boulder Facility Business, including sales, customer lists and suppliers, paid invoices, repair orders, employee records for the last three years, yellow page advertising (subject to Section 12.1), copies of pending sales orders, work in process and all other documents associated with the Boulder Business (the "Company Records").
Determination of Consideration For purposes of this Subsection 4.4, the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:
Share Termination Delivery Unit One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent. Failure to Deliver: Applicable
Post-Closing Purchase Price Adjustment 1.9.1 Within ninety (90) days following the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Purchaser a statement (the “Closing Net Working Capital Statement”) which shall set forth the Net Working Capital of the Newsprint Business and of Apache as of the Closing Time (which shall be set forth separately for each of the Newsprint Business and Apache, but as aggregated shall be referred to as the “Closing Net Working Capital”) and shall be prepared in accordance with Seller’s past accounting methods, policies, practices and procedures and in the same manner, with consistent classification and estimation methodology, as the Financial Statements were prepared, except that the Excluded Assets and the Newsprint Retained Obligations shall be excluded. The Closing Net Working Capital Statement may not be amended by Seller after it is delivered to Purchaser.
1.9.2 Purchaser shall, within thirty (30) days after the delivery of the Closing Net Working Capital Statement to it, complete its review of the Closing Net Working Capital reflected on the Closing Net Working Capital Statement. If Purchaser wishes to dispute the Closing Net Working Capital, Purchaser shall notify Seller in writing in reasonable detail of such disagreement and any reason therefore (“Purchaser’s Objection”), setting forth a specific description of the basis of Purchaser’s Objection and the adjustments to the Closing Net Working Capital that Purchaser believes should be made, on or before the last day of such thirty (30) day period, which Purchaser’s Objection may not be amended by Purchaser after it is delivered to Seller (except to withdraw any such Purchaser’s Objection). Any items on the Closing Net Working Capital Statements not disputed in Purchaser’s Objection shall be irrevocably deemed to be accepted by Purchaser. Seller shall then have thirty (30) days to review and respond to Purchaser’s Objection. If Seller and Purchaser are unable to resolve all of their disagreements with respect to the determination of the foregoing items within thirty (30) days following Seller’s receipt of Purchaser’s Objection (the “Negotiation Period”), they shall refer their remaining differences to a mutually agreeable independent accounting firm of national recognition (other than an independent accounting firm utilized by any of Seller, Apache or Purchaser or any Affiliate of any of the foregoing within the past three (3) years) acceptable to both Seller and Purchaser or if Seller and Purchaser are unable to agree as to such third party accounting firm within ten (10) days after the conclusion of the Negotiation Period, either Seller or Purchaser may request that the Chairman of the American Arbitration Association (or the nominated representative of the Chairman) appoint a third party accounting firm meeting the aforementioned requirements to resolve the dispute (the accounting firm selected being referred to as the “CPA Firm”), who shall determine, only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Net Working Capital requires adjustment. The procedure and schedule under which any dispute shall be submitted to the CPA Firm shall be as follows:
(a) Within ten (10) days after the later of (i) the end of the Negotiation Period and (ii) the selection of the CPA Firm, Purchaser shall submit any unresolved elements of the Purchaser’s Objection to the CPA Firm in writing (with a copy to Seller), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute a withdrawal by Purchaser of the Purchaser’s Objection with respect to any unresolved element to which such failure relates.
(b) Within fifteen (15) days following Purchaser’s submission of the unresolved elements of the Purchaser’s Objection as specified in sub-clause (a) above, Seller shall submit its response to the CPA Firm in writing (with a copy to Purchaser), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute an acceptance by Seller with respect to any unresolved elements to which such failure relates.
(c) The CPA Firm shall deliver its written determination to Purchaser and Seller no later than the thirtieth (30th) day after the remaining differences underlying Purchaser’s Objection are referred to the CPA Firm, or such longer period of time as the CPA Firm determines is necessary.
Adjustments to Purchase Price At Closing, the Purchase Price shall be adjusted (without duplication) in accordance with this Section 2.4.
(a) The Purchase Price shall be increased by the following amounts:
(i) the amount of all production expenses, operating expenses, third-party overhead expenses under applicable operating agreements, ad valorem and severance taxes, well bonds and capital expenditures actually paid by Seller in connection with the Assets, insofar and only insofar as the same are attributable to the period of time from and after the Effective Time, including, without limitation, (a) all operating costs and expenses paid by Seller, (b) all capital expenditures, including, without limitation, all drilling, completion, reworking, deepening, side-tracking, plugging and abandoning costs and expenses and paid by Seller, (c) all prepaid expenses and land related costs and expenses attributable to the Assets, including, without limitation, all bonus payments, royalty disbursements, delay rental payments, shut-in payments and other similar costs paid by Seller (provided, however, that the Purchase Price shall not be increased by land related expenses incurred by Seller in connection with Title Defect or Environmental Defect curative work), (d) excise, severance and production tax payments, and any other tax payments based upon or measured by the production of Sale Hydrocarbons or the proceeds of sale or other disposition therefrom paid by Seller and (e) expenses paid by Seller to any third party under applicable joint operating agreements or other contracts or agreements included in the Assets (with respect to which Seller shall provide Buyer with copies of the related invoices);
(ii) an amount equal to the value of all Stock Hydrocarbons (it being understood that such value shall be calculated based on the reference prices set forth in Schedule 2.4(a)(ii) determined as of the Effective Time, less transportation costs, quality adjustment, if any, applicable taxes and royalty payments);
(iii) the adjustment amount, if any, due Seller as determined pursuant to Section 11.1 with respect to Imbalances;
(iv) by Six Hundred Thousand Dollars ($600,000.00) if all of Seller’s right, title and interest in the RCVC Agreement are assigned to Buyer pursuant to the terms of this Agreement; and
(v) any other amount specified herein or otherwise agreed upon by Seller and Buyer in writing.
(b) The Purchase Price shall be decreased by the following amounts:
(i) an amount equal to the net proceeds (the price at which the Hydrocarbons are sold after the Effective Time, less transportation costs, quality adjustment, if any, applicable taxes and royalty payments) received by Seller from the sale or other disposition of Sale Hydrocarbons and Stock Hydrocarbons;
(ii) all actual production expenses, operating expenses, overhead under applicable operating agreements, taxes, and capital expenditures paid or incurred by Buyer in connection with the Assets (including, without limitation, royalties, minimum royalties, rentals, and prepaid charges, including, without limitation, prepaid taxes and prepaid insurance), to the extent they are attributable to the ownership or operation of the Assets (or to the Hydrocarbons produced and saved from, or allocable to, the Assets) before the Effective Time;
(iii) an amount equal to all proceeds received by Seller from whatever source that relate to the sale of Assets and are attributable to periods after the Effective Time;
(iv) the adjustment amount, if any, due Buyer as determined pursuant to Section 11.1 with respect to Imbalances;
(v) if reductions due to the aggregate Title Defect Value is greater than the aggregate Title Benefit Value, as provided in Section 6, an amount equal to such difference;
(vi) reductions due to Environmental Defects as provided in Section 7;
(vii) reductions due to the exercise of Preferential Rights as provided for in Section 9.2 or the time for the exercise of such right has not expired by Closing, or for the Allocated Value of Assets for which consents to assignment have not been obtained by Closing;
(viii) reductions due to Casualty Loss as provided in Section 11.3;
(ix) Seller’s pro rata share of taxes as determined pursuant to Section 4.1;
(x) reductions of the aggregate Allocated Values (without application of thresholds and deductibles) of Leases: (a) for which a consent for assignment has not been obtained by Closing and (b) which have an expiration date between execution of this Agreement and three (3) months after the Closing Date which have not been cured by an extension of such Lease for a period of time of not less than one (1) year; and
(xi) any other amount specified herein or otherwise agreed upon by Seller and Buyer in writing.
Post-Closing Adjustment (a) Within forty-five (45) days after the Closing Date, Seller shall prepare and deliver to Purchaser (i) an unaudited consolidated balance sheet of the Acquired Company and the Subsidiaries dated as of the close of business on the Closing Date (the "Closing Balance Sheet") showing the Net Worth of the Acquired Company and the Subsidiaries at the Closing Date (the "Preliminary Net Worth Amount") and (ii) a schedule (the "Closing Debt Schedule") of the amount of Long Term Debt at the Closing Date (the "Preliminary Debt Amount"). The Closing Balance Sheet shall be prepared in accordance with the definitions and procedures set forth on the Post-Closing Adjustment Schedule. In connection with the preparation of the Closing Balance Sheet and the Closing Debt Schedule, Purchaser shall give, and shall cause the Acquired Company and its representatives to give, to Seller and its representatives full access at all reasonable times to the books, records and other materials of the Acquired Company and the Subsidiaries and the personnel of, and work papers prepared by or for Purchaser, the Acquired Company and the Subsidiaries or their respective accountants, including, without limitation, to such historical financial information relating to the Acquired Company and the Subsidiaries as Seller may reasonably request in order to permit the timely preparation and delivery of the Closing Balance Sheet and the Closing Debt Schedule in accordance with this Section 1.05(a).
(b) Upon receipt of the Closing Balance Sheet and the Closing Debt Schedule, Purchaser shall have thirty (30) days (the "Review Period") to review such Closing Balance Sheet and the Closing Debt Schedule and related computations of the Net Worth of the Acquired Company and the Subsidiaries and the Closing Debt on the Closing Date. If Purchaser has accepted such Closing Balance Sheet Closing Debt Schedule in writing or has not given written notice to Seller setting forth in reasonable detail any objection of Purchaser to such Closing Balance Sheet or Closing Debt Schedule(a "Statement of Objections") prior to the expiration of the Review Period, then such Closing Balance Sheet and Closing Debt Schedule shall be final and binding upon the parties, and the Preliminary Net Worth Amount shall be deemed the Net Worth amount of the Acquired Company and the Subsidiaries as of the Closing Date (the "Final Net Worth Amount") and the Preliminary Debt Amount shall be deemed to be the amount of Long Term Debt as of the Closing Date (the "Final Debt Amount"). In addition, to the extent any portion of the Closing Balance Sheet or of the calculation of the Preliminary Net Worth Amount, of the Closing Debt Schedule or of the calculation of the Preliminary Debt Amount shall not be expressly objected to in the Statement of Objections, such matters shall be deemed to have been accepted and approved by Purchaser and shall be final and binding upon the parties for purposes hereof. In the event that Purchaser delivers a Statement of Objections during the Review Period, Purchaser and Seller shall use their commercially reasonable efforts to agree on the amount of Net Worth of the Acquired Company and the Subsidiaries on the Closing Date within thirty (30) days following the receipt by Seller of the Statement of Objections. If the parties are unable to reach an agreement as to such amounts within such thirty (30) day period, then the matter shall be submitted to Deloitte & Touche LLP, or such other accountant as shall be mutually agreed between the parties hereto (such accountant, the "Settlement Accountant"), who shall determine the matters still in dispute and adjust the Closing Balance Sheet to reflect such determination and establish the Final Net Worth Amount and adjust the Closing Debt Schedule and establish the Final Debt Amount. If issues in dispute are submitted to the Settlement Accountant for resolution, each party will furnish to the Settlement Accountant such work papers and other documents and information relating to the disputed issues as the Settlement Accountant may request, and will be afforded the opportunity to present to the Settlement Accountant any material relating to the resolution of the disputed items and to discuss the resolution of the disputed items with the Settlement Accountant; provided, that no party shall have any ex parte discussions with the Settlement Accountant (other than after reasonable notice to the other party and such party's refusal or failure to participate). The Settlement Accountant will be instructed in performing the review that Purchaser and Seller will each be provided with copies of any and all correspondence and drafts distributed to any party, and Purchaser and Seller will be granted access to information contained in the documents made available to the Settlement Accountant by the other party. The Settlement Accountant shall determine only those matters in dispute (and based solely on the materials and other information presented by Seller and Purchaser and not by independent investigation). The Settlement Accountant shall make its determination within thirty (30) days (or as soon as practicable thereafter if the Settlement Accountant notifies the parties that it requires additional time to make such determination) following the submission of the matter to the Settlement Accountant for resolution, and such determination shall be final and binding upon Purchaser and Seller. Purchaser and Seller will each bear fifty percent (50%) of the fees, charges and expenses of the Settlement Accountant.
(c) In the event that the Final Net Worth Amount is greater than the Target Net Worth Amount, such excess is referred to herein as the "Excess Net Worth Amount".
(d) In the event that the Final Net Worth Amount is less than the Target Net Worth Amount, such deficiency is referred to herein as the "Net Worth Deficiency".
Liability for Payment in Advance of Receipt of Securities Purchased In any and every case where payment for the purchase of Securities for the Fund is made by the Custodian in advance of receipt of the Securities purchased and in the absence of specified Written Instructions to so pay in advance, the Custodian shall be liable to the Fund for such payment.
Post-Closing Adjustments As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
(a) the Final Purchase Price is more than the Estimated Final Purchase Price, Purchaser shall pay to Seller the amount of such difference, or
(b) the Final Purchase Price is less than the Estimated Final Purchase Price, Seller shall pay to Purchaser the amount of such difference, in either event by wire transfer in immediately available funds. Payment by Purchaser or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date.
Purchase Price; Allocation of Purchase Price (a) The purchase price for the Purchased Assets (the “Purchase Price”) is equal to $675,000,000 in cash. The Purchase Price shall be paid as provided in Section 2.07 and shall be subject to adjustment as provided in Section 2.08. Seller shall be treated as receiving a portion of the Purchase Price as agent for any of its Affiliates actually selling, transferring or conveying the Purchased Assets, consistent with the allocation of the Purchase Price pursuant to the Allocation Statement, and Buyer’s payment of the Purchase Price to Seller shall constitute payment by Buyer to any of Seller’s Affiliates actually selling, transferring or conveying the Purchased Assets hereunder.
(b) Within 60 days after the Closing, Buyer shall deliver to Seller a statement (the “Allocation Statement”) allocating the Purchase Price (plus Assumed Liabilities and transaction costs, to the extent properly taken into account under Section 1060 of the Code) among the Purchased Assets in accordance with Section 1060 of the Code. If, within five Business Days after delivery of the Allocation Statement, Seller notifies Buyer in writing that Seller objects to the allocation set forth in the Allocation Statement, Buyer and Seller shall use commercially reasonable efforts to resolve such dispute within 20 days. In the event that Buyer and Seller are unable to resolve such dispute within 20 days, Buyer and Seller shall jointly retain KPMG LLP (the “Accounting Referee”) to resolve the disputed items in the manner described in Section 8.10.
(c) Each of Buyer and Seller shall (i) be bound by the Allocation Statement, as may be adjusted in accordance with Section 2.06(e), (ii) act in accordance with, and cause its Affiliates to act in accordance with, the Allocation Statement in the preparation, filing and audit of any Tax Return (including filing IRS Form 8594 with its federal Income Tax Return for the taxable year that includes the Closing) and (iii) take no position, and cause its Affiliates to take no position, inconsistent with the allocation reflected on the Allocation Statement on any Tax Return, in any Contest or otherwise, unless required by a Final Determination.
(d) In the event that the allocation reflected on the Allocation Statement is disputed by any Taxing Authority, the party receiving notice of the dispute shall promptly notify the other party hereto, and Buyer and Seller shall use their commercially reasonable efforts to defend such allocation in any Tax audit or similar proceeding.
(e) If an adjustment is made with respect to the Purchase Price pursuant to Section 2.08, the Allocation Statement shall be adjusted in accordance with Section 1060 of the Code and as mutually agreed by Buyer and Seller. In the event that an agreement is not reached within 20 days after the determination of the Final Closing Working Capital, any disputed items shall be resolved in the manner described in Section 8.10. Buyer and Seller shall file any additional information return required to be filed pursuant to Section 1060 of the Code and to treat the Allocation Statement as adjusted in the manner described in Section 2.06(c).
(f) Not later than 30 days prior to the filing of their respective Forms 8594 relating to this transaction, each party shall deliver to the other party a copy of its Form 8594.
