Possible Deficiency – Deck settlement. Performance Standard – Builder will correct if settlement exceeds 1-½ inches when measured eight feet from the house to the outside of the deck.
Possible Deficiency – Deck settlement Sample Clauses
Related to Possible Deficiency – Deck settlement
Final Settlement Statement (a) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price. (b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review. (c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive. (d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of Xxxxx Xxxxxxxx LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (Xxxxx Xxxxxxxx LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If Xxxxx Xxxxxxxx LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities. (e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it. (f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Waiver; Deficiency Each Grantor waives and agrees not to assert any rights or privileges which it may acquire under Section 9-112 of the New York UCC. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the fees and disbursements of any attorneys employed by the Administrative Agent or any Lender to collect such deficiency.
Borrowing Base Deficiency (i) Other than as provided in clause (ii) below, if the aggregate outstanding amount of the Advances plus the Letter of Credit Exposure ever exceeds the lesser of the (y) Borrowing Base and (z) the aggregate Commitments, the Borrower shall, after receipt of written notice from the Administrative Agent regarding such deficiency, take any of the following actions (and the failure of the Borrower to take such actions to remedy such Borrowing Base deficiency shall constitute an Event of Default): (A) prepay Advances or, if the Advances have been repaid in full, make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure, such that the Borrowing Base deficiency is cured within 10 Business Days after the date such deficiency notice is received by the Borrower from the Administrative Agent; (B) pledge as Collateral for the Obligations additional Oil and Gas Properties acceptable to the Administrative Agent and each of Lenders such that the Borrowing Base deficiency is cured within 30 days after the date such deficiency notice is received by the Borrower from the Administrative Agent; (C) (i) deliver, within 10 Business Days after the date such deficiency notice is received by the Borrower from the Administrative Agent, written notice to the Administrative Agent indicating the Borrower’s election to repay the Advances and make deposits into the Cash Collateral Account to provide cash collateral for the Letters of Credit, each in five monthly installments equal to one-fifth of such Borrowing Base deficiency with the first such installment due 30 days after the date such deficiency notice is received by the Borrower from the Administrative Agent and each following installment due 30 days after the preceding installment and (ii) make such payments and deposits within such time periods; provided that, the Borrowing Base deficiency cure permitted under this clause (C) shall not be available to the Borrower unless, concurrent with the written notice delivered to the Administrative Agent electing this option, the Borrower shall have delivered to the Administrative Agent a calculation of the Borrower’s consolidated cash flow forecast and financial projections which demonstrates, to the Administrative Agent’s satisfaction, the Borrower’s ability to make each such installment payments and to otherwise pay its other Debt and trade accounts payable as they become due; or (D) (i) deliver, within 10 Business Days after the date such deficiency notice is received by the Borrower from the Administrative Agent, written notice to the Administrative Agent indicating the Borrower’s election to combine the options provided in clause (B) and clause (C) above, and also indicating the amount to be prepaid in installments and the amount to be provided as additional Collateral, and (ii) make such five equal consecutive monthly installments and deliver such additional Collateral within the time required under clause (B) and clause (C) above. (ii) Upon each reduction of the Borrowing Base, if any, resulting from a Borrowing Base redetermination made under Section 2.02(c)(ii) or (iii), if the aggregate outstanding amount of the Advances plus the Letter of Credit Exposure exceeds the lesser of the (y) Borrowing Base and (z) the aggregate Commitments, then the Borrower shall immediately prepay the Advances or, if the Advances have been repaid in full, make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure, in an amount equal to (A) such portion of the Borrowing Base deficiency resulting from such reduction plus (B) if a Borrowing Base deficiency exists prior to such reduction, then an amount equal to the lesser of (i) the net cash proceeds of the transaction that triggered such Borrowing Base reduction and (ii) such portion of the Borrowing Base deficiency in existence immediately prior to such reduction. (iii) Each prepayment pursuant to this Section 2.05(b) shall be accompanied by accrued interest on the amount prepaid to the date of such prepayment and amounts, if any, required to be paid pursuant to Section 2.12 as a result of such prepayment being made on such date. Each prepayment under this Section 2.05(b) shall be applied to the Advances as determined by the Administrative Agent and agreed to by the Lenders in their sole discretion. The failure of the Borrower to provide a notice of its election within the required 10 days as required in clause (i) above shall be deemed to be an election by the Borrower to take the actions provided in clause (i)(A) above.
Preliminary Settlement Statement Seller and Buyer shall execute and deliver the Preliminary Settlement Statement.
Payments of Post-Closing Adjustment Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated as set forth below, shall (A) be due (x) within five (5) Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause (v) above; and (B) be paid by wire transfer of immediately available funds to such account(s) as is directed by Buyer or Sellers, as the case may be.
Payment in the Event Losses Fail to Reach Expected Level On the date that is 45 days following the last day (such day, the “True-Up Measurement Date”) of the calendar month in which the tenth anniversary of the calendar day following the Bank Closing occurs, the Assuming Bank shall pay to the Receiver fifty percent (50%) of the excess, if any, of (i) twenty percent (20%) of the Stated Threshold less (ii) the sum of (A) twenty-five percent (25%) of the asset premium (discount) plus (B) twenty-five percent (25%) of the Cumulative Shared-Loss Payments plus (C) the Cumulative Servicing Amount. The Assuming Bank shall deliver to the Receiver not later than 30 days following the True-Up Measurement Date, a schedule, signed by an officer of the Assuming Bank, setting forth in reasonable detail the calculation of the Cumulative Shared-Loss Payments and the Cumulative Servicing Amount.
Payment of Settlement Amount (1) Within thirty (30) days of the Execution Date, the Settling Defendants shall pay the Settlement Amount to Siskinds LLP for deposit into the Trust Account. The Settlement Amount shall be converted into Canadian currency upon deposit into the Trust Account. (2) The Settling Defendants shall deposit the Settlement Amount into the Trust Account by wire transfer. Siskinds LLP shall provide the necessary wire transfer information to Counsel for the Settling Defendants with reasonable advance notice so that the Settling Defendants have a reasonable period of time to comply with section 3.1(1) of this Settlement Agreement. (3) The Settlement Amount and other consideration to be provided in accordance with the terms of this Settlement Agreement shall be provided in full satisfaction of the Released Claims against the Releasees. (4) The Settlement Amount shall be all-inclusive of all amounts, including without limitation, interest, costs, Class Counsel Fees and Class Counsel Disbursements. (5) The Releasees shall have no obligation to pay any amount in addition to the Settlement Amount, for any reason, pursuant to or in furtherance of this Settlement Agreement or the Proceedings or any Other Actions. (6) Once a Claims Administrator has been appointed, Siskinds LLP shall transfer control of the Trust Account to the Claims Administrator. (7) Siskinds LLP and the Claims Administrator shall maintain the Trust Account as provided for in this Settlement Agreement. While in control of the Trust Account, Siskinds LLP and the Claims Administrator shall not pay out all or part of the monies in the Trust Account, except in accordance with this Settlement Agreement, or in accordance with an order of the Courts obtained after notice to the Parties.
Mandatory Prepayments due to Borrowing Base Deficiency In the event that at any time any Borrowing Base Deficiency shall exist, the Borrower shall, within five Business Days after delivery of the applicable Borrowing Base Certificate, prepay the Loans (or provide Cash Collateral for Letters of Credit as contemplated by Section 2.05(k)) or reduce Other Covered Indebtedness in such amounts as shall be necessary so that such Borrowing Base Deficiency is cured; provided that, if the Borrower (x) chooses, by written notice to the Administrative Agent within such five (5) Business Day period, to make such repayment by means of a Capital Call (which notice shall include a certification by a Financial Officer that the uncalled capital commitments of the Borrower at such time, excluding uncalled capital commitments of Defaulted Investors, exceed the amount of such Borrowing Base Deficiency), the Borrower shall have thirty (30) Business Days to cure the Borrowing Base Deficiency (which 30-Business Day period shall include the five (5) Business Days permitted for delivery of such written notice to the Administrative Agent) and (y) makes the Capital Call to its Investors (as defined in the Guarantee and Security Agreement) within ten (10) Business Days of the date of notice to the Administrative Agent (and provides the Administrative Agent with written evidence of the Capital Call notice within two (2) Business Days of such notice being sent); and provided further that (i) the aggregate amount of such prepayment of Loans (and Cash Collateral for Letters of Credit) shall be at least equal to the Revolving Percentage times the aggregate prepayment of the Covered Debt Amount, and (ii) if, within five Business Days after delivery of a Borrowing Base Certificate demonstrating such Borrowing Base Deficiency, the Borrower shall present the Lenders with a reasonably feasible plan (other than the use of a Capital Call as described above) acceptable to the Required Lenders in their sole discretion to enable such Borrowing Base Deficiency to be cured within 30 Business Days (which 30-Business Day period shall include the five (5) Business Days permitted for delivery of such plan), then such prepayment or reduction shall not be required to be effected immediately but may be effected in accordance with such plan (with such modifications as the Borrower may reasonably determine), so long as such Borrowing Base Deficiency is cured within such 30-Business Day period.
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".
Actual Settlement Date Accounting With respect to any sale or purchase transaction that is not posted to the Account on the contractual settlement date as referred to in Section 2.5, Bank shall post the transaction on the date on which the cash or Financial Assets received as consideration for the transaction is actually received by Bank.
