Post-Closing Adjustment of Purchase Price. (a) Within 90 days following the Closing Date, the Purchaser shall prepare and deliver to the Sellers the Proposed Closing Date Acquisition Statement setting forth (i) the Closing Date Securitization Mortgage Loan UPB, (ii) the Closing Date Whole Mortgage Loan UPB, (iii) the Closing Date Servicing Interests Purchase Price, (iv) the Closing Date Platform Purchase Price, (v) the Closing Date Servicer Advance Purchase Price and (vi) the Closing Date Shortfall Amount, in each case, as of the Calculation Time, together with a certificate of a duly authorized officer of the Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared in good faith, in accordance with the Agreed Upon Procedures consistently applied and on the same basis as the Reference Acquisition Statement and in a manner consistent with the books of account and other financial records of the Purchaser relating to the Business and the Purchased Assets. (b) The Sellers shall, within 30 days after its receipt of the Proposed Closing Date Acquisition Statement, inform the Purchaser in writing (the “Sellers’ Objection”), setting forth in reasonable detail the basis of any dispute the Sellers may have with respect to any information contained in the Proposed Closing Date Acquisition Statement and the Sellers’ determination and the adjustments to the Proposed Closing Date Acquisition Statement and the corresponding adjustments to the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before the last day of such 30-day period, then the Proposed Closing Date Acquisition Statement, including the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price and the Closing Date Shortfall Amount set forth therein, shall be final and binding on the parties hereto. The Purchaser shall have 30 days from its receipt of the Sellers’ Objection to review and respond to the Sellers’ Objection. (c) If the Sellers timely submit the Sellers’ Objection to the Purchaser in accordance with Section 2.08(b), the Sellers and the Purchaser first shall seek in good faith to resolve any disagreement over the disputed items set forth in the Sellers’ Objection. If any disagreement cannot be resolved by the Purchaser and the Sellers within 30 days after the Purchaser’s receipt of the Sellers’ Objection, then either the Purchaser or the Sellers, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized independent certified public accounting firm (the “Accountant”), which shall determine, on the basis set forth in and in accordance with Section 2.08(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount as set forth in the Proposed Closing Date Acquisition Statement require adjustment. The determination by the Accountant shall be final and binding on the parties hereto for all purposes of this Agreement. Each of the Parent and the Purchaser shall bear all fees and costs incurred by it in connection with this determination and 50% of all fees and expenses relating to the foregoing work of the Accountant. The Accountant shall have full access to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement and by the Sellers’ in preparing the Sellers’ Objection, including the work papers of their respective accountants (to the extent permitted by such accountants), and all other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty (30) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount, as the case may be, in an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no less. (d) Once the parties hereto agree upon or otherwise arrive at, or once the Accountant has made a final determination on, the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may be, then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar shall be repaid to the Purchaser by the Sellers within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is less than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. (e) Any amounts owed to one party pursuant to Section 2.08(d) shall be netted against any amount owed by such party pursuant to Section 2.08(d) prior to any applicable payment. (f) The provisions in this Section 2.08 relating to resolutions of disputes by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this Agreement.
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. (a) Within 90 As soon as reasonably practicable after the Closing Date, and in any event no later than ninety (90) days following the Closing Date, the Purchaser Buyer shall prepare and deliver to WSG a certificate (the Sellers the Proposed Closing Date Acquisition Statement “Adjustment Statement”) setting forth (i) the Buyer’s calculation of the actual Closing Net Working Capital as of the Closing Date Securitization Mortgage Loan UPBand the corresponding Closing Net Working Capital Adjustment Amount (the “Final Closing Net Working Capital Adjustment Amount”), and the actual Closing Indebtedness Amount (iithe “Final Closing Indebtedness Amount”) and the corresponding Closing Date Whole Mortgage Loan UPBIndebtedness Adjustment Amount (the “Final Closing Indebtedness Adjustment Amount”), (iii) with reasonable supporting documentation. The Buyer shall perform such calculation based on the Closing Date Servicing Interests Purchase Pricemethodologies, (iv) practices and procedures used in the Closing Date Platform Purchase Price, (v) the Closing Date Servicer Advance Purchase Price and (vi) the Closing Date Shortfall Amount, in each case, as preparation of the Calculation TimeAudited Financial Statements, together with a certificate of a duly authorized officer of to the Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared in good faith, in accordance with the Agreed Upon Procedures consistently applied and on the same basis as the Reference Acquisition Statement and in a manner extent consistent with GAAP, otherwise GAAP shall apply, except as otherwise specifically set forth within the books sample statement of account and other financial records of the Purchaser relating to the Business and the Purchased AssetsClosing Net Working Capital set forth on Exhibit A attached hereto.
(b) The Sellers shall, within 30 days after its During the 30-day period following WSG’s receipt of the Proposed Closing Date Acquisition Adjustment Statement, inform WSG and its representatives shall be entitled to review the Purchaser in writing books and records of Buyer applicable to the Adjustment Statement, as reasonably requested by WSG or its representatives during normal business hours and subject to reasonable restrictions as the Buyer may impose on such access. The Adjustment Statement shall become final and binding on the date that is thirty (30) days following delivery and confirmed receipt thereof, unless prior to the end of such period, WSG delivers to the Buyer written notice of its disagreement (a “Sellers’ ObjectionNotice of Disagreement”), setting forth in reasonable detail ) specifying the basis nature and amount of any dispute as to the Sellers Closing Net Working Capital or Closing Indebtedness Amount as set forth in the Adjustment Statement (including any omissions therefrom). WSG shall be deemed to have agreed with all items and amounts of Closing Net Working Capital or Closing Indebtedness Amount not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with this Section 1.9(b). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts of the Closing Net Working Capital or Closing Indebtedness Amount as reflected on the Adjustment Statement not being calculated in accordance with this Agreement.
(c) During the 15‑day period following delivery of a Notice of Disagreement by WSG to the Buyer, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to any information contained the computation of the Closing Net Working Capital or Closing Indebtedness Amount as specified therein. Any disputed items resolved in writing between WSG and the Buyer within such 15‑day period shall be final and binding with respect to such items, and if WSG and the Buyer agree in writing on the resolution of each disputed item specified by WSG in the Proposed Closing Date Acquisition Statement Notice of Disagreement and the Sellers’ determination and the adjustments to the Proposed Closing Date Acquisition Statement and the corresponding adjustments to amount of the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price Net Working Capital or the Closing Date Shortfall Indebtedness Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before the last day of such 30-day period, then the Proposed Closing Date Acquisition Statement, including the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price and the Closing Date Shortfall Amount set forth therein, amount so determined shall be final and binding on the parties heretoParties for all purposes hereunder. The Purchaser shall have 30 days from its receipt of the Sellers’ Objection to review and respond to the Sellers’ Objection.
(c) If the Sellers timely submit the Sellers’ Objection to the Purchaser in accordance with Section 2.08(b), the Sellers WSG and the Purchaser first shall seek in good faith to resolve any disagreement over the disputed items set forth in the Sellers’ Objection. If any disagreement canBuyer have not be resolved all such differences by the Purchaser end of such 15‑day period, WSG and the Sellers within 30 days after the Purchaser’s receipt of the Sellers’ ObjectionBuyer shall use reasonable best efforts to promptly agree upon and submit, then either the Purchaser or the Sellersin writing, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized an independent certified public accounting firm (the “AccountantIndependent Accounting Firm”). The Independent Accounting Firm shall consider only those items and amounts in WSG’s and the Buyer’s respective calculations of the Closing Net Working Capital or the Closing Indebtedness Amount that are identified as being items and amounts to which WSG and the Buyer have been unable to agree. In resolving any disputed item, the Independent Accounting Firm may not assign a value to any item 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 Independent Accounting Firm shall be agreed upon in writing by WSG and the Buyer. In acting under this Agreement, the Independent Accounting Firm will be entitled to the powers, privileges and immunities of an arbitrator. The costs of any dispute resolution pursuant to this Section 1.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by WSG and the Buyer in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall determine, be calculated on an aggregate basis based on the basis set forth relative dollar values of the amounts in dispute and in accordance with Section 2.08(a)shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The Independent Accounting Firm’s determination of the dispute and allocation of fees, costs and only with respect to expenses shall be conclusive and binding on the remaining differences so submitted, whether and to what extent, if anyParties absent fraud or manifest error.
(d) Within two (2) Business Days after the Closing Net Working Capital, the Closing Date Securitization Mortgage Loan UPBNet Working Capital Adjustment Amount, the Closing Date Whole Mortgage Loan UPBIndebtedness Amount and the Closing Indebtedness Adjustment Amount are finally determined pursuant to Section 1.9(b) and Section 1.9(c), the Purchase Price shall be adjusted as follows:
(i) if the Final Closing Date Servicing Interests Purchase Price, Net Working Capital Adjustment Amount plus the Closing Date Platform Purchase Price, Indebtedness Adjustment Amount is greater than the Closing Date Servicer Advance Purchase Price or Net Working Capital Adjustment Amount plus the Final Closing Indebtedness Adjustment Amount as set forth on the Closing Date Shortfall Statement, then the Buyer shall pay to WSG an amount equal to such difference within two (2) Business Days; and
(ii) if the Final Closing Net Working Capital Adjustment Amount plus the Closing Indebtedness Adjustment Amount as set forth in the Proposed Closing Date Acquisition Adjustment Statement require adjustment. The determination by the Accountant shall be final and binding on the parties hereto for all purposes of this Agreement. Each of the Parent and the Purchaser shall bear all fees and costs incurred by it in connection with this determination and 50% of all fees and expenses relating to the foregoing work of the Accountant. The Accountant shall have full access to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement and by the Sellers’ in preparing the Sellers’ Objection, including the work papers of their respective accountants (to the extent permitted by such accountants), and all other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty (30) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount, as the case may be, in an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no less.
(d) Once the parties hereto agree upon or otherwise arrive at, or once the Accountant has made a final determination on, the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase PriceClosing Net Working Capital Adjustment Amount plus the Final Closing Indebtedness Adjustment Amount as set forth on the Closing Statement (such amount, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may be“Shortfall Amount”), then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar Seller Parties shall be repaid obligated to pay to the Purchaser by the Sellers Buyer within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date two (2) Business Days of WSG receiving notice of such payment at a rate per annum Shortfall Amount, an amount equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is less than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate.
(eiii) Any amounts owed payments to one party be made pursuant to this Section 2.08(d) 1.9 shall be netted against any amount owed made by wire transfer of immediately available funds as directed by the recipient of such party payment. Any payments made pursuant to Section 2.08(d) prior to any applicable payment.
(f) The provisions in this Section 2.08 relating 1.9 will be treated as an adjustment to resolutions of disputes the Purchase Price for all Tax purposes unless otherwise required by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this Agreementapplicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cross Country Healthcare Inc)
Post-Closing Adjustment of Purchase Price. (a) Within 90 ninety (90) days following after the Closing Date, the Purchaser Buyer shall prepare prepare, or cause to be prepared, and deliver to the Sellers Seller a written statement (the Proposed “Closing Date Acquisition Statement setting Statement”) that shall set forth (i) the consolidated balance sheet of the Company and its Subsidiaries as of the Closing Date Securitization Mortgage Loan UPB, (the “Closing Balance Sheet”); (ii) a calculation of the actual (A) Net Working Capital as of the Closing Date Whole Mortgage Loan UPB(the “Closing Net Working Capital”), (B) Indebtedness as of the Closing (the “Closing Indebtedness”), (C) Cash as of the Closing (the “Closing Cash”) and (D) Transaction Expenses as of the Closing (the “Closing Transaction Expenses”) (with each of Closing Net Working Capital, Closing Indebtedness and Closing Cash determined without giving effect to the transactions contemplated herein) and (iii) on the Closing Date Servicing Interests basis of the foregoing, a calculation of the Purchase Price. The Closing Balance Sheet, (iv) the Closing Date Platform Purchase PriceNet Working Capital, (v) the Closing Date Servicer Advance Purchase Price Indebtedness and (vi) the Closing Date Shortfall Amount, in each case, as of the Calculation Time, together with a certificate of a duly authorized officer of the Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared in good faith, Cash shall be calculated in accordance with the Agreed Upon Procedures consistently applied definitions of such terms set forth in this Agreement. All calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and on the same basis as the Reference Acquisition Statement and in Closing Transaction Expenses shall be accompanied by a manner consistent with the books of account and other financial records certificate of the Purchaser relating to the Business and the Purchased AssetsBuyer’s Chief Financial Officer certifying that such amounts have been prepared in good faith in accordance with this Agreement.
(b) The Sellers shallClosing Statement shall become final and binding on the 30th day following the Buyer’s delivery thereof, within 30 days after unless prior to the end of such period, the Seller delivers to the Buyer written notice of its receipt disagreement (a “Notice of Disagreement”) specifying the Proposed Closing Date Acquisition Statement, inform the Purchaser in writing (the “Sellers’ Objection”), setting forth in reasonable detail the basis nature and amount of any dispute as to the Sellers Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses, as set forth in the Closing Statement. The Seller shall be deemed to have agreed with the Buyer’s calculation of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.4(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses as reflected on the Closing Statement not being calculated in accordance with the provisions of this Agreement, including the definitions set forth herein. If a timely Notice of Disagreement is delivered by Seller, then the Closing Statement shall become final and binding on the parties on the earlier of (i) the date the Buyer and Seller resolve in writing any differences they have with respect to the matters set forth in the Notice of Disagreement and (ii) the date all matters in dispute are finally resolved by the Firm.
(c) During the fifteen (15) day period following delivery of a Notice of Disagreement by the Seller to the Buyer, the parties in good faith shall seek to resolve in writing any differences that they may have with respect to the computation of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses as specified therein and any information contained related items. Any disputed items resolved in writing between the Seller and the Buyer within such fifteen (15) day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Proposed Closing Date Acquisition Statement Notice of Disagreement and the Sellers’ determination and the adjustments to the Proposed Closing Date Acquisition Statement and the corresponding adjustments to amount of the Closing Date Securitization Mortgage Loan UPBNet Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before the last day of such 30-day period, then the Proposed Closing Date Acquisition Statement, including the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price and the Closing Date Shortfall Amount set forth therein, amounts so determined shall be final and binding on the parties heretofor all purposes hereunder. The Purchaser shall have 30 days from its receipt of the Sellers’ Objection to review and respond to the Sellers’ Objection.
(c) If the Sellers timely submit Seller and the Sellers’ Objection to Buyer have not resolved all such differences by the Purchaser in accordance with Section 2.08(b)end of such fifteen (15) day period, the Sellers Seller and the Purchaser first shall seek Buyer shall, within thirty (30) days following the end of such period, submit in good faith writing to resolve any disagreement over the disputed items set forth in the Sellers’ Objection. If any disagreement cannot be resolved by the Purchaser and the Sellers within 30 days after the Purchaser’s receipt of the Sellers’ Objection, then either the Purchaser or the Sellers, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally nationally recognized independent certified public accounting firm with a nationally recognized dispute resolution practice (the “AccountantFirm”), which shall determinetheir 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, on the basis set forth in Closing Indebtedness, Closing Cash and in accordance with Section 2.08(a)Closing Transaction Expenses, and only with respect the Firm shall make a written determination as to each such disputed item and the remaining differences so submitted, whether and to what extent, if any, amount of the Closing Date Securitization Mortgage Loan UPBNet Working Capital, the Closing Date Whole Mortgage Loan UPBIndebtedness, the Closing Date Servicing Interests Purchase PriceCash and Closing Transaction Expenses, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount as set forth in the Proposed Closing Date Acquisition Statement require adjustment. The which determination by the Accountant shall be final and binding on the parties hereto for all purposes of this Agreementhereunder and shall not be subject to appeal or further review. Each The Firm shall consider only those items and amounts in the Seller’s and the Buyer’s respective calculations of the Parent Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses that are identified as being items and amounts to which the Seller and the Purchaser shall bear all fees and costs incurred Buyer have been unable to agree. In resolving any disputed item, the Firm may not assign a value to any item greater than the greatest value for such item claimed by it in connection with this determination and 50% of all fees and expenses relating to either party or less than the foregoing work of the Accountantsmallest value for such item claimed by either party. The Accountant Firm shall have full access be Duff & Xxxxxx, LLP or, if such firm is unable or unwilling to all information used act, such other nationally recognized firm expert in resolving such disputes as shall be agreed in writing by the Purchaser in preparing Seller and the Proposed Closing Date Acquisition Statement Buyer. The Seller and by the Sellers’ in preparing Buyer shall use their commercially reasonable efforts to cause the Sellers’ Objection, including Firm to render a written decision resolving the work papers of their respective accountants (matters submitted to the extent permitted by such accountants)it as promptly as practicable, and all other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than any event within thirty (30) days after such submissionfollowing the submission thereof. The Accountant shall Judgment may be limited to deciding entered upon the Final Securitization Mortgage Loan UPBwritten determination of the Firm in accordance with Section 10.9. In acting under this Agreement, the Final Whole Mortgage Loan UPB, Firm will be entitled to the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price privileges and the Final Shortfall Amount, as the case may be, in immunities of an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no lessarbitrator.
(d) Once The fees and expenses of the parties hereto agree upon or otherwise arrive atFirm shall be borne 50% by the Seller and 50% by the Buyer, or once unless the Accountant has made a final determination onFirm adopts in full all the positions of one of the parties, in which case the Final Securitization Mortgage Loan UPB, other party shall bear 100% of such amounts. The other fees and disbursements of each party incurred in connection with the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount dispute resolution pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price this Section 2.4(c) shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may be, then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar shall be repaid to the Purchaser borne by the Sellers within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is less than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rateparty.
(e) Any amounts owed The Buyer and the Seller will, and will cause the Company (in the case of the Seller, prior to one the Closing and, in the case of the Buyer, during the period from and after the date of delivery of the Closing Statement through the resolution of any adjustments contemplated by this Section 2.4) to afford the other party pursuant and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of the Company and its Subsidiaries and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated by this Section 2.08(d) 2.4. Each party shall be netted against any amount owed authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations of the Net Working Capital, Cash and Indebtedness as specified in this Section 2.4; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party pursuant has signed an agreement relating to Section 2.08(d) prior access to any applicable paymentsuch work papers in form and substance acceptable to such accountants.
(f) The provisions Final Closing Statement, once final and binding in accordance with this Section 2.08 relating 2.4, shall be used to resolutions determine the Purchase Price.
(i) For the purposes of disputes by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this Agreement, the “Net Adjustment Amount” means the aggregate amount, which aggregate amount may be positive or negative, equal to the Purchase Price minus the Estimated Purchase Price.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Matson, Inc.)
Post-Closing Adjustment of Purchase Price. (a) Within 90 days following For purposes of this section, the Companies' books of account shall be closed as of April 27, 2002. As soon as practicable after the Closing Date, the but in no event later than sixty (60) calendar days thereafter, Purchaser shall prepare prepare, and deliver to the Sellers Selling Shareholders, a preliminary Closing Balance Sheet (the Proposed "Preliminary Closing Date Acquisition Statement setting forth (iBalance Sheet") on a basis consistent with GAAP as previously agreed to by the Closing Date Securitization Mortgage Loan UPBParties, (ii) and shall take into account the Closing Date Whole Mortgage Loan UPBInventory Adjustment described below. In addition, (iii) the Closing Date Servicing Interests Purchase Priceon or about April 27, (iv) the Closing Date Platform Purchase Price2002, (v) the Closing Date Servicer Advance Purchase Price and (vi) the Closing Date Shortfall Amount, in each case, as of the Calculation Time, together with Companies shall conduct a certificate physical inventory (the "Physical Inventory") to identify required changes from the perpetual inventory records maintained by the Companies required to reflect the actual inventory on such dates the inventory is taken and to reflect any valuation adjustments required to write-off obsolete or below-standard quality inventory and to properly value inventory at the lower of cost or net realizable value (the "Inventory Adjustment"). The Shareholders shall be entitled to have a duly authorized officer of representative present at all times during the Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared in good faith, in accordance with the Agreed Upon Procedures consistently applied and Physical Inventory. The Physical Inventory shall be taken on the same a basis as the Reference Acquisition Statement and in a manner consistent with the books of account and other financial records past practices of the Companies as described on Schedule 2.3(a). Such Inventory Adjustment shall also take into account any such adjustments with respect to any finished products warehoused on behalf of customers not otherwise considered Inventory. Each of the Selling Shareholders agrees to provide reasonable assistance to Purchaser relating and its advisors in connection with the preparation of the Preliminary Closing Balance Sheet and to the Business and Companies in the Purchased Assetsconduct of the physical inventory.
(b) The Sellers shall, within 30 Selling Shareholders shall have thirty (30) calendar days after its following receipt of the Proposed Preliminary Closing Date Acquisition StatementBalance Sheet during which to notify Purchaser of any dispute of any item contained in the Preliminary Closing Balance Sheet, inform the Purchaser in writing (the “Sellers’ Objection”), setting which notice shall set forth in reasonable detail the basis for such dispute. If the Selling Shareholders do not notify Purchaser of any dispute the Sellers may have with respect to any information contained in the Proposed Closing Date Acquisition Statement and the Sellers’ determination and the adjustments to the Proposed Closing Date Acquisition Statement and the corresponding adjustments to the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before the last day of within such thirty (30) calendar-day period, then the Proposed Preliminary Closing Date Acquisition StatementBalance Sheet shall be deemed to be the Final Closing Balance Sheet (as hereinafter defined). The Parties shall cooperate in good faith to resolve any dispute as promptly as possible, including the Closing Date Securitization Mortgage Loan UPBand upon such resolution, the Final Closing Date Whole Mortgage Loan UPBBalance Sheet shall be prepared in accordance with the agreement of the Parties.
(c) If the Parties are unable to resolve any dispute regarding the Preliminary Closing Balance Sheet within fifteen (15) calendar days (or such longer period as the Parties shall mutually agree in writing) of the notice of a dispute sent by the Selling Shareholders, Purchaser shall engage Deloitte & Touche LLP (the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price "Arbitrator") to resolve all issues having a bearing on such dispute and the Closing Date Shortfall Amount set forth therein, such resolution shall be final and binding on the parties heretoParties. The Purchaser Arbitrator shall have 30 use commercially reasonable efforts to complete its work within sixty (60) calendar days from of its receipt engagement. The expenses of the Sellers’ Objection to review and respond to the Sellers’ Objection.
(c) If the Sellers timely submit the Sellers’ Objection to the Purchaser in accordance with Section 2.08(b), the Sellers and the Purchaser first shall seek in good faith to resolve any disagreement over the disputed items set forth in the Sellers’ Objection. If any disagreement cannot be resolved by the Purchaser and the Sellers within 30 days after the Purchaser’s receipt of the Sellers’ Objection, then either the Purchaser or the Sellers, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized independent certified public accounting firm (the “Accountant”), which shall determine, on the basis set forth in and in accordance with Section 2.08(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount as set forth in the Proposed Closing Date Acquisition Statement require adjustment. The determination by the Accountant Arbitrator shall be final and binding on the parties hereto for all purposes of this Agreement. Each of the Parent and the shared equally by Purchaser shall bear all fees and costs incurred by it in connection with this determination and 50% of all fees and expenses relating to the foregoing work of the Accountant. The Accountant shall have full access to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement and by the Sellers’ in preparing Selling Shareholders. The Preliminary Closing Balance Sheet as finally determined, by incorporating the Sellers’ Objection, including the work papers resolution of their respective accountants (to the extent permitted by such accountants), and all other information reasonably requested any disputes by the Accountant from Arbitrator or as otherwise agreed to by the Sellers and the Purchaser. The Accountant shall be instructed Parties, pursuant to submit its determination this Section 2.3 is referred to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty (30) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount, herein as the case may be, in an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed "Final Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no lessBalance Sheet".
(d) Once Within ten (10) days after the parties hereto agree upon or otherwise arrive at, or once the Accountant has made a final determination on, of the Final Securitization Mortgage Loan UPBClosing Balance Sheet, if the Final Whole Mortgage Loan UPB, amount of the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price Net Book Value is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may beEighty-Five Million Five Hundred Thousand Dollars ($85,500,000), then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar Selling Shareholders shall be repaid execute joint written instructions to the Escrow Agent directing the Escrow Agent to deliver to Purchaser by the Sellers within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing an aggregate amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Ratedifference between Eighty-Five Million Five Hundred Thousand Dollars ($85,500,000) and the Net Book Value (the "Book Value Adjustment Amount"). To If the extent the Final Shortfall Amount is less than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Book Value Adjustment Amount is greater than the Estimated Shortfall Amountaggregate amount of the Escrow Funds, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall AmountSelling Shareholders, one dollar shall be paid jointly and severally, agree to the pay to Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing an amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate.
(e) Any amounts owed to one party pursuant to Section 2.08(d) shall be netted against any difference between the Book Value Adjustment Amount and the aggregate amount owed by such party pursuant to Section 2.08(d) prior to any applicable payment.
(f) The provisions in this Section 2.08 relating to resolutions of disputes by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto Escrow Funds, on or before ten (10) days after the determination of its obligations under this Agreementthe Final Closing Balance Sheet.
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. As soon as reasonably practical after the Closing, but in no event later than sixty (a60) Within 90 days following after the Closing Date, the Purchaser shall prepare and deliver to the Sellers Seller a statement prepared in good faith and in accordance with the Proposed Accounting Principles, together with reasonably detailed supporting information (the “Initial Closing Date Acquisition Statement Statement”), setting forth the Purchaser’s determination of (i) the Closing Date Securitization Mortgage Loan UPBIndebtedness Amount, (ii) the Closing Date Whole Mortgage Loan UPBCash Amount, (iii) the Closing Date Servicing Interests Purchase PriceInventory Adjustment Amount, (iv) the Closing Date Platform Purchase PricePayables Adjustment Amount, (v) the Closing Date Servicer Advance Purchase Price CapEx Reimbursement Amount, and (vi) the amount of the closing date payment (the “Closing Date Shortfall Payment Amount, in each case, as of the Calculation Time, together with a certificate of a duly authorized officer of the Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared in good faith, ”) calculated in accordance with the Agreed Upon Procedures consistently applied Accounting Principles and on Section 2.03(c), using the same basis as amounts of the Reference Acquisition Statement Closing Indebtedness Amount, the Closing Cash Amount, the Closing Inventory Adjustment Amount, the Closing Payables Adjustment Amount and in a manner consistent the CapEx Reimbursement Amount instead of the estimated amounts for each such item.
(a) Throughout the period following the Closing Date until the determination of the Final Closing Statement, the Purchaser and the Company shall permit the Seller and its Representatives, at the Seller’s expense, reasonable access (with the right to make copies), during normal business hours upon reasonable advance notice, to the relevant financial books of account and other financial records of the Purchaser relating and the Company solely for the purposes of the review and objection right contemplated herein, together with reasonable access to the Business individuals responsible for the preparation of the Initial Closing Statement in order to respond to the inquiries of the Seller and its Representatives related thereto (subject to the Purchased Assetsexecution of customary work paper access letters reasonably requested by the Purchaser’s accountants, if any).
(b) The Sellers shall, within 30 days after its receipt of the Proposed Closing Date Acquisition Statement, inform Seller shall deliver to the Purchaser in writing by the Objection Deadline Date either a notice indicating that the Seller accepts the Initial Closing Statement (the “Sellers’ ObjectionNotice of Acceptance”) or a detailed statement describing each of its objections to the Initial Closing Statement (the “Notice of Disagreement”). If the Seller timely delivers a Notice of Disagreement, setting only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (such matters, the “Disputed Items”) and all such Disputed Items shall be based only on (i) mathematical or clerical errors or (ii) that the calculation of the amounts included in the Initial Closing Statement were not determined in accordance with the Accounting Principles. The Notice of Disagreement shall specify what the Seller reasonably believes is the correct amount for each Disputed Item. Any component of the calculations set forth in reasonable detail the basis Initial Closing Statement that is not the subject of any dispute a timely delivered Notice of Disagreement by the Sellers may have with respect to any information contained in Seller shall be final and binding upon the Proposed Closing Date Acquisition Statement Seller and the Sellers’ determination Purchaser.
(c) The Disputed Items shall be resolved as follows:
(i) The Seller and the adjustments Purchaser shall first use their reasonable efforts to resolve such Disputed Items.
(ii) Any resolution by the Proposed Closing Date Acquisition Statement Seller and the corresponding adjustments Purchaser as to such Disputed Items shall be final and binding upon the Closing Date Securitization Mortgage Loan UPB, Parties.
(iii) If the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by Seller and the Purchaser on or before do not reach a resolution of all Disputed Items within thirty (30) days after delivery of the last day Notice of Disagreement, each of the Seller and the Purchaser shall, following the expiration of such 30-day period, then be entitled to engage the Proposed Closing Date Acquisition Statement, including Neutral Accountant to resolve any Disputed Items. If one or more Disputed Items are submitted to the Closing Date Securitization Mortgage Loan UPBNeutral Accountant for resolution, the Closing Date Whole Mortgage Loan UPBSeller and the Purchaser shall enter into a customary engagement letter, and, to the extent necessary, each Party shall waive and cause its Affiliates to waive any then-existing conflicts with the Neutral Accountant and shall cooperate with the Neutral Accountant in connection with its determination pursuant to this Section 2.06. Within fifteen (15) Business Days after the Neutral Accountant has been retained, each of the Seller and the Purchaser shall furnish, at its own expense, to the Neutral Accountant and the other Party a written statement of its positions with respect to each Disputed Item. Within ten (10) Business Days after the expiration of such fifteen (15) Business Day period, each of such Party may deliver to the Neutral Accountant and to each other its response to the other’s position on each Disputed Item. With each submission, each Party shall furnish to the Neutral Accountant such information and documents as may be requested by the Neutral Accountant and may also furnish to the Neutral Accountant such other information and documents as such Party deems relevant, in each case with copies being given to the other such Party substantially simultaneously. The Neutral Accountant shall, at its discretion or at the written request of the Seller and the Purchaser, conduct a conference concerning the Disputed Items and each of the Seller or the Purchaser shall have the right to present additional documents, materials and other information and to have present its Representatives at such conference. No Party or its Representatives shall be permitted to engage in any ex-parte communications (whether written or oral) with the Neutral Accountant.
(iv) The Neutral Accountant shall be instructed to resolve only the Disputed Items and shall be instructed not to investigate any other matter independently. In resolving any Disputed Item, the Neutral Accountant may not assign a greater or lesser value to any Disputed Item than that assigned to such Disputed Item by the Purchaser or the Seller in the Initial Closing Date Servicing Interests Purchase PriceStatement or the Notice of Disagreement, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price as applicable. The Seller and the Closing Date Shortfall Amount set forth thereinPurchaser shall request that the Neutral Accountant (A) make a final determination of all the Disputed Items as soon as reasonably practicable, and in any event within thirty (30) days, from the date the Disputed Items were submitted to the Neutral Accountant and (B) provide a reasonably detailed basis for its determination in respect of each Disputed Item.
(v) The resolution by the Neutral Accountant of the Disputed Items, absent fraud, intentional misconduct or manifest error, shall be final and binding on upon the parties heretoParties. The Purchaser shall have 30 days from its receipt of Parties agree that the Sellers’ Objection to review and respond to the Sellers’ Objection.
(c) If the Sellers timely submit the Sellers’ Objection to the Purchaser in accordance with Section 2.08(b), the Sellers and the Purchaser first shall seek in good faith to resolve any disagreement over the disputed items procedures set forth in the Sellers’ Objection. If any disagreement cannot be resolved by the Purchaser and the Sellers within 30 days after the Purchaser’s receipt of the Sellers’ Objection, then either the Purchaser or the Sellers, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized independent certified public accounting firm (the “Accountant”), which shall determine, on the basis set forth in and in accordance with this Section 2.08(a), and only 2.06(d) for resolving disputes with respect to the remaining differences so submittedInitial Closing Statement shall be the sole and exclusive method for resolving any such disputes.
(vi) The Purchaser and the Seller shall each bear one-half of the fees and expenses of the Neutral Accountant.
(vii) The Neutral Accountant shall act as an expert, whether and to what extentnot as an arbitrator, if any, the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount as set forth in the Proposed Closing Date Acquisition Statement require adjustmentresolving such Disputed Items. The determination by proceeding before the Neutral Accountant shall be final and binding on the parties hereto for all purposes of this Agreement. Each of the Parent and the Purchaser shall bear all fees and costs incurred by it in connection with this an expert determination under applicable Laws governing expert determination and 50% of all fees and expenses relating to the foregoing work of the Accountant. The Accountant shall have full access to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement and by the Sellers’ in preparing the Sellers’ Objection, including the work papers of their respective accountants (to the extent permitted by such accountants), and all other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty (30) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount, as the case may be, in an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no lessappraisal proceedings.
(d) Once The Initial Closing Statement, including any modifications resulting from the parties hereto agree upon or otherwise arrive atresolution pursuant to Section 2.06(d) of any Disputed Items set forth in the Notice of Disagreement, or once the Accountant has made a final determination on, shall be deemed to be the Final Securitization Mortgage Loan UPB, Closing Statement and be final and binding upon the Seller and the Purchaser for the purposes of this Agreement upon the earliest to occur of (i) the delivery by the Seller of the Notice of Acceptance or the failure of the Seller to deliver the Notice of Disagreement by the Objection Deadline Date; (ii) the resolution of all Disputed Items by the Seller and the Purchaser pursuant to Section 2.06(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.06(d)(iv) by the Neutral Accountant. Within five (5) Business Days after the Final Whole Mortgage Loan UPBClosing Statement becomes or is deemed to be final and binding upon the Parties, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared an adjustment to the Estimated Servicing Interests Purchase PriceClosing Date Payment Amount and a payment by wire transfer of immediately available funds in respect thereof shall be made as follows:
(i) If the Closing Date Payment Amount, as finally determined in accordance with the foregoing provisions of this Section 2.06, exceeds the Estimated Closing Date Payment Amount (such difference, the Final Platform “Closing Underpayment”), the Purchaser shall pay to the Seller an amount equal to such Closing Underpayment to the Purchase Price shall Bank Account or to another bank account designated in writing by the Seller (such designation to be compared to the Estimated Platform Purchase Price, made within two (2) Business Days after the Final Servicer Advance Purchase Price shall be compared to Closing Statement becomes or is deemed final).
(ii) If the Estimated Servicer Advance Purchase Price and Closing Date Payment Amount, as finally determined in accordance with the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price foregoing provisions of this Section 2.06, is less than the Estimated Servicing Interests Purchase PriceClosing Date Payment Amount (such difference, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may be, then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price“Closing Overpayment”), the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar Seller shall be repaid pay to the Purchaser an amount equal to such Closing Overpayment to a bank account designated in writing by the Sellers Purchaser (such designation to be made within 10 days following such determination as a reduction from two (2) Business Days after the Estimated Servicing Interests Purchase PriceFinal Closing Statement becomes or is deemed final).
(iii) For the avoidance of doubt, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including if the Closing Date toPayment Amount, but excludingas finally determined in accordance with the foregoing provisions of this Section 2.06, the date of such payment at a rate per annum is equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is less than the Estimated Shortfall Closing Date Payment Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar no payment shall be paid to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Ratemade.
(e) Any amounts owed to one party pursuant to Section 2.08(d) shall be netted against any amount owed by such party pursuant to Section 2.08(d) prior to any applicable payment.
(f) The provisions in this Section 2.08 relating to resolutions of disputes by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this Agreement.
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. (a) Within 90 As promptly as practicable, but in no event later than sixty (60) days following the Closing Date, the Purchaser Buyer shall prepare and deliver to the Sellers the Proposed Closing Date Acquisition Statement Seller a statement setting forth Buyer’s calculation of (i) the Closing Date Securitization Mortgage Loan UPBCash, (ii) the Closing Date Whole Mortgage Loan UPBIndebtedness, (iii) the Closing Date Servicing Interests Purchase PriceTransaction Expenses, (iv) the Closing Date Platform Purchase PriceNet Working Capital Adjustment, and (v) the Closing Date Servicer Advance Purchase Price and resulting therefrom (vi) collectively, the Closing Date Shortfall Amount, in each case, as of the Calculation Time, together with a certificate of a duly authorized officer of the Purchaser certifying that the “Proposed Closing Date Acquisition Statement”). The Proposed Closing Statement was will be prepared in good faith, in accordance with the Agreed Upon Procedures consistently applied and on the same basis as the Reference Acquisition Statement and in a manner consistent with the books of account and other financial records of the Purchaser relating to the Business and the Purchased AssetsAccounting Rules.
(b) The Sellers shall, within 30 Seller shall have a period of thirty (30) days after its receipt of the Proposed Closing Date Acquisition Statement, inform the Purchaser in writing Statement to review it (the “Sellers’ ObjectionReview Period”), setting forth in reasonable detail the basis ) and to notify Buyer of any dispute the Sellers may have with respect to any information contained in disputes regarding the Proposed Closing Date Acquisition Statement or the calculation of Closing Cash, Closing Indebtedness, Closing Transaction Expenses or Closing Net Working Capital. During the Review Period, Seller, Xxxxxx’s accountants, and Xxxxxx’s counsel shall have access to the Sellers’ determination Group’s books and, work papers and to the adjustments to persons who prepared the Proposed Closing Date Acquisition Statement and the corresponding adjustments to the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before the last day of such 30-day period, then the Proposed Closing Date Acquisition Statement, including the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price and the Closing Date Shortfall Amount set forth therein, shall be final and binding on the parties hereto. The Purchaser shall have 30 days from its receipt of the Sellers’ Objection to review and respond to the Sellers’ Objectionin accordance with customary protocols regarding such access.
(c) If Seller approves in writing of Xxxxx's determination of the Sellers timely submit Closing Cash, Closing Indebtedness, Transaction Expenses and Closing Net Working Capital as set forth on the Sellers’ Proposed Closing Statement, or if Seller fails to deliver an Objection Notice, as provided below, then Xxxxx's determinations as indicated in the Proposed Closing Statement will become binding on all Parties to this Agreement.
(d) If Seller disagrees with the Purchaser in accordance with Section 2.08(b)computation of the Closing Cash, the Sellers Closing Indebtedness, Transaction Expenses or Closing Net Working Capital as reflected on the Proposed Closing Statement, Seller shall deliver a written notice ("Objection Notice") to Buyer, within the Review Period, setting forth Seller’s calculation of such items and the Purchaser first shall seek basis, with reasonable specificity, for the differences identified by Seller. Xxxxx and Xxxxxx will negotiate in good faith in an effort to resolve those disputes. If the Parties are unable to resolve any disagreement over the disputed items set forth in the Sellers’ Objection. If any disagreement cannot be resolved by the Purchaser and the Sellers dispute within 30 thirty (30) days after Seller delivers the Purchaser’s receipt of the Sellers’ ObjectionObjection Notice, then either the Purchaser or the Sellers, by written notice to the other, may elect to have any such disagreement tendered to Buyer and resolved by Seller will jointly retain a mutually agreeable internationally nationally recognized independent certified public accounting firm that is mutually acceptable to Buyer and Seller (the “AccountantIndependent Accounting Firm”), which acting as arbitrators and experts and not as auditors, to resolve the amounts still in dispute (the “Disputed Amounts”). The Parties shall determinemake readily available to the Independent Accounting Firm all relevant books and records relating to the Proposed Closing Statement, and all other items reasonably requested by the Independent Accounting Firm.
(e) The Independent Accounting Firm shall not be entitled to consider any items or matters other than the Disputed Amounts and make any adjustments to the Proposed Closing Statement in connection therewith. The Parties agree that the Independent Accounting Firm’s decision regarding each Disputed Amount must be within the range of values assigned to such Stock Purchase Agreement – Averna/Xxxxxxx Electronics 15 item in the Proposed Closing Statement and the Objection Notice, respectively. The Independent Accounting Firm shall make its determination based solely on presentations and information provided by Buyer or Seller and not by independent review. The Independent Accounting Firm’s determination as to the resolution of the Disputed Amounts shall be in writing and the Parties shall direct the Independent Auditor to furnish such determination to Seller and Buyer as promptly as practicable after the Disputed Amounts have been referred to the Independent Accounting Firm (and in any event within thirty (30) days thereafter, unless the Parties shall agree in writing otherwise). Xxxxx and Xxxxxx each agrees that absent bad faith, Fraud, or manifest error on the basis set forth in part of the Independent Accounting Firm, they shall be bound by the determination of the Disputed Amounts and in accordance with Section 2.08(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Final Purchase Price or arising therefrom by the Closing Date Shortfall Amount Independent Accounting Firm.
(f) The fees, costs and expenses of the Independent Accounting Firm shall be allocated between Seller and Xxxxx as determined (and as set forth in the Proposed Closing Date Acquisition Statement require adjustment. The determination final determination) by the Accountant shall be final and binding Independent Accounting Firm based upon the relative success (in terms of percentages) of each of Buyer’s claim, on the parties hereto for all purposes of this Agreementone hand, and Seller’s claim, on the other hand. Each For example, if the final determination reflects a sixty-forty (60-40) compromise of the Parent and Parties’ claims, the Purchaser shall bear all fees and costs incurred by it in connection with this determination and 50% of all fees and Independent Accounting Firm would allocate expenses relating forty percent (40%) to the foregoing work of Party (i.e. either Buyer, on the Accountant. The Accountant shall have full access one hand, or Seller, on the other hand) whose claims were determined to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement be sixty percent (60%) successful and by the Sellers’ in preparing the Sellers’ Objection, including the work papers of their respective accountants sixty percent (60%) to the extent permitted by such accountants)Party (i.e. either Buyer, and all on the one hand, or Seller, on the other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall hand) whose claims were determined to be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty forty percent (3040%) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount, as the case may be, in an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no lesssuccessful.
(dg) Once the parties hereto agree upon or otherwise arrive at, or once the Accountant has made a final determination on, If the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than (such difference, represented by a negative number, being the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may be“Overpayment”), then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar Seller shall be repaid pay to the Purchaser by the Sellers within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing Buyer an amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent Overpayment in immediately available funds to an account designated by Buyer.
(h) If the Final Shortfall Amount is less than Purchase Price exceeds the Estimated Shortfall AmountPurchase Price (such difference represented by a positive number, being the “Underpayment”), then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar Buyer shall be paid pay to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing Seller an amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid Underpayment in immediately available funds to the Sellers an account designated by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds RateSeller.
(e) Any amounts owed to one party pursuant to Section 2.08(d) shall be netted against any amount owed by such party pursuant to Section 2.08(d) prior to any applicable payment.
(fi) The provisions failure of Buyer to assert any matter that could have been asserted in this Section 2.08 relating the Proposed Closing Statement and that Xxxxx was aware or had knowledge of at shall constitute a waiver of Buyer of any right of Buyer to resolutions assert any such matter at any subsequent date as a breach of disputes by an Accountant are not intended to a representation and warranty against the Seller. For the avoidance of doubt, the Parties agree that the preceding sentence shall not be interpreted to require that in any way limit Buyer’s right under the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this AgreementRWI Policy.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kimball Electronics, Inc.)
Post-Closing Adjustment of Purchase Price. The Purchase Price shall be subject to adjustment after the Closing as specified in this Section 2.08:
(a) Within As soon as reasonably practical after the Closing, but in no event later than 90 days following after the Closing Date, the Purchaser shall prepare and deliver to Seller the Sellers Closing Statement, which shall, in the Proposed case of Closing Date Acquisition Statement setting forth Working Capital, be prepared (i) using and applying the Closing Date Securitization Mortgage Loan UPB, Accounting Principles and (ii) taking into account the definitional adjustments set forth in the Reference Statement of Working Capital. The parties agree that the determination of the Estimated Closing Working Capital and Final Closing Working Capital will be without any change in or introduction of any new reserves, other than changes in or the addition of reserves attributable to changes in facts and circumstances occurring after the Measurement Date, and without duplication to any items counted in such determination. To the extent reasonably required by Purchaser in connection therewith, Seller shall provide Purchaser with reasonable access during normal business hours to its books, records and employees in connection with Purchaser’s preparation of the Closing Date Whole Mortgage Loan UPBStatement (subject to Seller taking actions to ensure compliance by Seller and its Subsidiaries and their respective directors, officers and employees with any COVID-19 Measures).
(iiib) Within 45 days after receipt of the Closing Date Servicing Interests Purchase PriceStatement, (iv) Seller may, by written notice to Purchaser, object to the Closing Date Platform Purchase Price, (v) Statement. If Seller objects to the Closing Date Servicer Advance Purchase Price Statement, it shall within such 45-day period deliver written notice of its objection (the “Objection Notice”) to Purchaser, which Objection Notice shall: (i) set forth the items being disputed and the reasons therefor and (viii) specify Seller’s calculation of Closing Working Capital. If Seller does not deliver an Objection Notice within such 45-day period, Purchaser’s calculation of Closing Working Capital set forth in the Closing Date Shortfall AmountStatement shall be deemed the Final Closing Working Capital. To the extent reasonably required by Seller, Purchaser shall provide Seller with reasonable access to its books, records and employees in each case, as connection with Seller’s review of the Calculation Time, together with a certificate of a duly authorized officer Closing Statement.
(c) If Purchaser does not dispute any items in the Objection Notice within 30 days after delivery of the Objection Notice, Seller’s calculation of Closing Working Capital set forth in the Objection Notice shall be deemed the Final Closing Working Capital. For 30 days after delivery of the Objection Notice, Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared and Seller shall seek in good faithfaith to resolve all disputes between them regarding the Closing Statement. If Purchaser and Seller cannot resolve all such disputes within such period, the matters in accordance with dispute shall be determined by Xxxxx Xxxxxxxx LLP or, if such firm is unavailable to act in such capacity, by another nationally recognized independent public accounting firm reasonably satisfactory to both Purchaser and Seller (the Agreed Upon Procedures consistently applied and “Arbiter”). Promptly, but not later than 30 Business Days after the Arbiter’s formal engagement (based solely on the same basis as submissions by Seller and Purchaser to the Reference Acquisition Statement Arbiter and not by independent review, and in a manner consistent with the books of account and other financial records preparation of the Purchaser relating to the Business and the Purchased Assets.
(b) The Sellers shall, within 30 days after its receipt Reference Statement of the Proposed Closing Date Acquisition Statement, inform the Purchaser in writing (the “Sellers’ Objection”), setting forth in reasonable detail the basis of any dispute the Sellers may have with respect to any information contained in the Proposed Closing Date Acquisition Statement and the Sellers’ determination and the adjustments to the Proposed Closing Date Acquisition Statement and the corresponding adjustments to the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before the last day of such 30-day period, then the Proposed Closing Date Acquisition StatementWorking Capital, including the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price Accounting Principles) only those items in dispute and shall render a report as to its resolution of such items and the resulting calculation of Closing Date Shortfall Amount set forth therein, shall be final and binding on the parties hereto. The Purchaser shall have 30 days from its receipt of the Sellers’ Objection to review and respond Working Capital pursuant to the Sellers’ Objection.
(c) If the Sellers timely submit the Sellers’ Objection to the Purchaser in accordance with Section 2.08(b), the Sellers and the Purchaser first shall seek in good faith to resolve any disagreement over the disputed items set forth in the Sellers’ Objection. If any disagreement cannot be resolved by the Purchaser and the Sellers within 30 days after the Purchaser’s receipt of the Sellers’ Objection, then either the Purchaser or the Sellers, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized independent certified public accounting firm (the “Accountant”), which shall determine, on the basis set forth in and in accordance with Section 2.08(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount as set forth in the Proposed Closing Date Acquisition Statement require adjustment. The determination by the Accountant shall be final and binding on the parties hereto for all purposes terms of this Agreement. Each For purposes of the Parent Arbiter’s calculation of Closing Working Capital and Closing Indebtedness, the amounts to be included shall be the appropriate amounts from the Closing Statement as to items that are not in dispute, and the amounts determined by the Arbiter, as to items that are submitted for resolution by the Arbiter. In resolving any disputed item, the Arbiter may not assign a value to such item greater than the greatest value for such item claimed by either party or less than the lowest value for such item claimed by either party. Purchaser and Seller shall bear all fees cooperate with the Arbiter in making its determination and, absent manifest error or fraud, such determination shall be conclusive and binding upon Purchaser and Seller, and the Arbiter’s calculation of (i) Closing Working Capital shall be deemed the Final Closing Working Capital, and (ii) Closing Indebtedness shall be deemed the Final Closing Indebtedness. The Arbiter shall allocate its costs incurred by it in connection with this determination and 50% of all fees and expenses relating between Purchaser and Seller based upon the percentage of the aggregate contested dollar amount submitted to the foregoing work Arbiter that is ultimately awarded to Purchaser on the one hand, or Seller, on the other hand, such that Purchaser bears a percentage of such costs and expenses equal to the percentage of the Accountant. The Accountant shall have full access contested dollar amount awarded to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement Seller and by the Sellers’ in preparing the Sellers’ Objection, including the work papers Seller bears a percentage of their respective accountants (such costs and expenses equal to the extent permitted by such accountants), and all other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission percentage of the matter contested dollar amount awarded to it but no later than thirty (30) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount, as the case may be, in an amount which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement and the Sellers in the Sellers’ Objection, but no more and no lessXxxxxxxxx.
(dx) Once Within three Business Days of the parties hereto agree upon or otherwise arrive at, or once determination of Final Closing Working Capital:
(i) In the Accountant has made a final determination on, event the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase PriceClosing Date Payment, then Seller shall pay to Purchaser the amount of such shortfall.
(ii) In the event the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, as the case may be, then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar shall be repaid to the Purchaser by the Sellers within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is less than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase PriceClosing Date Payment, then for each dollar that Purchaser shall pay to Seller the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rateexcess.
(e) Any amounts owed to one party pursuant to Section 2.08(d) shall be netted against any amount owed by such party pursuant to Section 2.08(d) prior to any applicable payment.
(f) The provisions in this Section 2.08 relating to resolutions of disputes by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this Agreement.
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. (a) Within 90 60 days following after the Closing Date, the Purchaser Buyer shall prepare and deliver to Seller a consolidated balance sheet of the Sellers Company and the Proposed Closing Date Acquisition Statement setting forth (i) Company Subsidiaries as of the Closing Date Securitization Mortgage Loan UPB(the "Closing Balance Sheet"). The Closing Balance Sheet shall be prepared by Buyer in good faith and in accordance with GAAP and shall include the amount of Working Capital, (ii) the Closing Date Whole Mortgage Loan UPB, (iii) the Closing Date Servicing Interests Purchase Price, (iv) the Closing Date Platform Purchase Price, (v) the Closing Date Servicer Advance Purchase Price Debt and (vi) the Closing Date Shortfall Amount, in each case, Restricted Cash as of the Calculation Time, together Closing Date. Seller shall cooperate with a certificate of a duly authorized officer Buyer in the preparation of the Purchaser certifying that the Proposed Closing Date Acquisition Statement was prepared in good faith, in accordance with the Agreed Upon Procedures consistently applied and on the same basis as the Reference Acquisition Statement and in a manner consistent with the books of account and other financial records of the Purchaser relating to the Business and the Purchased AssetsBalance Sheet.
(b) The Sellers shallBuyer shall cooperate with Seller and shall allow Seller and its agents and representatives such access as Seller may reasonably request to the books, within records, accounts and information of the Company to allow Seller to examine the accuracy of the Closing Balance Sheet. Within 30 days after its receipt of the Proposed date that the Closing Date Acquisition StatementBalance Sheet is delivered by Buyer to Seller, inform the Purchaser in writing (the “Sellers’ Objection”), Seller may deliver to Buyer a written report setting forth in reasonable detail the basis of any dispute the Sellers may have with respect to any information contained in the Proposed Closing Date Acquisition Statement and the Sellers’ determination and the proposed adjustments to the Proposed Working Capital, Debt or Restricted Cash set forth on the Closing Date Acquisition Statement Balance Sheet (the "Seller's Dispute Report").
(i) If Seller notifies Buyer of its acceptance of the amount of the Working Capital, Debt and Restricted Cash as of the corresponding Closing shown on the Closing Balance Sheet, or if Seller fails to deliver a report of proposed adjustments to the Working Capital, Debt or Restricted Cash set forth on the Closing Date Securitization Mortgage Loan UPBBalance Sheet within the 30-day period specified in the preceding sentence, the Closing Date Whole Mortgage Loan UPBamount of the Working Capital, Debt and Restricted Cash as of the Closing Date Servicing Interests Purchase Price, shown on the Closing Date Platform Purchase Price, Balance Sheet shall be conclusive and binding on the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount, parties as the case may be, that the Sellers propose should be made. If no Sellers’ Objection is received by the Purchaser on or before of the last day of such 30-day period.
(ii) Buyer and Seller shall use good faith efforts to resolve any dispute involving the amount of the Working Capital, then the Proposed Closing Date Acquisition Statement, including Debt and Restricted Cash as of the Closing Date Securitization Mortgage Loan UPB(each a "Disputed Matter"), the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price and the Closing Date Shortfall Amount set forth therein, any resolution between them as to a Disputed Matter shall be final final, binding and binding conclusive on the parties hereto.
(iii) If, after 30 days following the receipt by Buyer of Seller's Dispute Report, Buyer and Seller are unable to resolve any Disputed Matter, such Disputed Matter shall be referred to an internationally recognized independent accounting firm reasonably acceptable to both Buyer and Seller (the "Arbitrator") for resolution. The Purchaser Arbitrator shall have 30 be instructed to use every reasonable effort to make its determination with respect to such Disputed Matter (the "Determination") within 45 days from its receipt of the Sellers’ Objection to review and respond submission to the Sellers’ ObjectionArbitrator of such Disputed Matter. Buyer shall give the Arbitrator access at all reasonable times to the books, records, accounts and facilities of the Company used to prepare the Closing Balance Sheet or as otherwise reasonably requested by the Arbitrator for the purpose of making a Determination. After completing the Determination, the Arbitrator shall deliver notice of the Determination to Buyer and Seller and upon receipt thereof, the Determination shall be final, binding and conclusive on the parties hereto with respect to such Disputed Matter. The costs, fees and expenses of the Arbitrator shall be shared equally by Buyer and Seller.
(c) If the Sellers timely submit total amount of the Sellers’ Objection to Working Capital less the Purchaser Debt plus the Restricted Cash as of the Closing Date as finally determined in accordance with this Section 2.08(b2.3 is less than the total amount of the Working Capital less the Debt plus the Restricted Cash set forth on the certificate delivered pursuant to Section 2.2(b), then Seller shall pay to Buyer the Sellers and the Purchaser first shall seek in good faith to resolve any disagreement over the disputed items set forth in the Sellers’ Objectionamount of such difference. If any disagreement cannot be resolved by the Purchaser and the Sellers within 30 days after the Purchaser’s receipt total amount of the Sellers’ Objection, then either Working Capital less the Purchaser or Debt plus the Sellers, by written notice to Restricted Cash as of the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized independent certified public accounting firm (the “Accountant”), which shall determine, on the basis set forth in and Closing Date as finally determined in accordance with this Section 2.08(a2.3 is greater than the total amount of the Working Capital less the Debt plus the Restricted Cash set forth on the certificate delivered pursuant to Section 2.2(b), and only with respect then Buyer shall pay to Seller the remaining differences so submitted, whether and to what extent, if any, the Closing Date Securitization Mortgage Loan UPB, the Closing Date Whole Mortgage Loan UPB, the Closing Date Servicing Interests Purchase Price, the Closing Date Platform Purchase Price, the Closing Date Servicer Advance Purchase Price or the Closing Date Shortfall Amount as set forth in the Proposed Closing Date Acquisition Statement require adjustmentamount of such difference. The determination by the Accountant All amounts due under this Section 2.3(c) shall be final and binding on the parties hereto for all purposes of this Agreement. Each of the Parent and the Purchaser shall bear all fees and costs incurred paid by it in connection with this determination and 50% of all fees and expenses relating to the foregoing work of the Accountant. The Accountant shall have full access to all information used by the Purchaser in preparing the Proposed Closing Date Acquisition Statement and by the Sellers’ in preparing the Sellers’ Objection, including the work papers of their respective accountants (to the extent permitted by such accountants), and all other information reasonably requested by the Accountant from the Sellers and the Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty (30) days after such submission. The Accountant shall be limited to deciding the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall AmountBuyer or Seller, as the case may be, in an amount by wire transfer of immediately available funds, within two (2) business days after the date on which shall be equal to or in between the amounts proposed for such items by the Purchaser in the Proposed Closing Date Acquisition Statement Working Capital, Debt and the Sellers in the Sellers’ Objection, but no more and no less.
(d) Once the parties hereto agree upon or otherwise arrive at, or once the Accountant has made a final determination on, the Final Securitization Mortgage Loan UPB, the Final Whole Mortgage Loan UPB, the Final Servicing Interests Purchase Price, the Final Platform Purchase Price, the Final Servicer Advance Purchase Price and the Final Shortfall Amount pursuant to the foregoing procedures, the Final Servicing Interests Purchase Price shall be compared to the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price shall be compared to the Estimated Platform Purchase Price, the Final Servicer Advance Purchase Price shall be compared to the Estimated Servicer Advance Purchase Price and the Final Shortfall Amount shall be compared to the Estimated Shortfall Amount. To the extent the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, Restricted Cash as the case may be, then for each dollar that the Final Servicing Interests Purchase Price is less than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is less than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is less than the Estimated Servicer Advance Purchase Price, one dollar shall be repaid to the Purchaser by the Sellers within 10 days following such determination as a reduction from the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including of the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is less than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is less than the Estimated Shortfall Amount, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination, together are finally determined in accordance with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, then for each dollar that the Final Servicing Interests Purchase Price is greater than the Estimated Servicing Interests Purchase Price, the Final Platform Purchase Price is greater than the Estimated Platform Purchase Price or the Final Servicer Advance Purchase Price is greater than the Estimated Servicer Advance Purchase Price, one dollar shall be paid to the Sellers by the Purchaser within 10 days following such determination as an increase to the Estimated Servicing Interests Purchase Price, the Estimated Platform Purchase Price or the Estimated Servicer Advance Purchase Price, as the case may be, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate. To the extent the Final Shortfall Amount is greater than the Estimated Shortfall Amount, then for each dollar that the Final Shortfall Amount is greater than the Estimated Shortfall Amount, one dollar shall be paid to the Purchaser by the Sellers within 10 days following such determination, together with interest on the foregoing amount for the period from and including the Closing Date to, but excluding, the date of such payment at a rate per annum equal to the Federal Funds Rate.
(e) Any amounts owed to one party pursuant to Section 2.08(d) shall be netted against any amount owed by such party pursuant to Section 2.08(d) prior to any applicable payment.
(f) The provisions in this Section 2.08 relating to resolutions of disputes by an Accountant are not intended to and shall not be interpreted to require that the parties hereto refer to such a firm any dispute arising out of a breach by one of the parties hereto of its obligations under this Agreement2.3.
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