Common use of Post-Closing Payments Clause in Contracts

Post-Closing Payments. (a) If the Closing Date Adjusted Purchase Price is greater than the Adjusted Purchase Price determined in accordance with Section 2.06 (the amount by which the Closing Date Adjusted Purchase Price exceeds the Adjusted Purchase Price herein referred to as the “Closing Amount Excess”), then Sellers shall instruct the Escrow Agent to pay to Buyer out of the Escrow Funds an amount equal to the Closing Amount Excess. If the Closing Amount Excess exceeds the amount of the Escrow Funds (the amount of such deficiency, the “Escrow Shortfall”), Sellers shall pay to Buyer, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06, an amount equal to the Escrow Shortfall. (b) If the Adjusted Purchase Price determined in accordance with Section 2.06 is greater than the Closing Date Adjusted Purchase Price (the amount by which the Adjusted Purchase Price exceeds the Closing Date Adjusted Purchase Price herein referred to as the “Closing Amount Shortfall”), then Buyer shall pay to Sellers, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06, an amount equal to the Closing Amount Shortfall. (c) Sellers shall pay to Buyer, and Buyer shall pay to Sellers, as applicable, any post-Closing payments as may be required herein, including pursuant to Section 2.10, Section 2.11 or Section 7.06.

Post-Closing Payments. (a) If the Closing Date Adjusted Purchase Price is greater than the Adjusted Purchase Price The Final Adjustment Amount shall be determined as set forth in accordance with subsections (b) and (c) of this Section 2.06 (the amount by which the Closing Date Adjusted Purchase Price exceeds the Adjusted Purchase Price herein referred to as the “Closing Amount Excess”), then Sellers shall instruct the Escrow Agent to pay to Buyer out of the Escrow Funds an amount equal to the Closing Amount Excess2.5. If the Closing Final Adjustment Amount Excess exceeds the amount of the Escrow Funds (the amount of such deficiencyis a positive number, the “Escrow Shortfall”), Sellers then Buyer shall pay such Final Adjustment Amount multiplied by the XXXX Seller Percentage in cash to BuyerXXXX Seller and such Final Adjustment Amount multiplied by the AAC Seller Percentage in cash to AAC Seller, in each case within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06, an amount equal to the Escrow Shortfall. (b) final determination thereof. If the Adjusted Purchase Price determined in accordance with Section 2.06 Final Adjustment Amount is greater than the Closing Date Adjusted Purchase Price (the amount by which the Adjusted Purchase Price exceeds the Closing Date Adjusted Purchase Price herein referred to as the “Closing Amount Shortfall”)a negative number, then Buyer XXXX Seller shall pay the absolute value of such Final Adjustment Amount multiplied by the XXXX Seller Percentage and AAC Seller shall pay the absolute value of such Final Adjustment Amount multiplied by the AAC Seller Percentage, in each case to Sellers, Buyer in cash within five (5) Business Days after the Adjusted Purchase Price final determination thereof. If, in the year of the Closing but following the determination of the Final Section 338 Adjustment, there is finally determined a change in the highest marginal U.S. federal income Tax rate applicable to U.S. corporations, which rate is retroactively applied and effective as of the Closing Date, the Final 338 Adjustment shall be recalculated solely to reflect the changed U.S. federal income Tax rate, and XXXX Seller and AAC Seller shall pay to Buyer (in the proportions described in the second sentence of this Section 2.5(a)) the excess of the recalculated Final Section 338 Adjustment over the previously calculated Final Section 338 Adjustment. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds to an account designated in writing by the receiving party and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than seventy-five (75) days after the Closing Date, Buyer shall deliver to Sellers (i) a statement (the “Final Adjustment Statement”) setting forth the balance sheet of the Company as of the Closing prepared in accordance with Section 2.06the Accounting Principles, an amount equal consistently applied, after giving effect to the Pre-Sale Transactions and the ALNY Sale or ALNY Transfer, as applicable (the “Subject Balance Sheet”), and setting forth in reasonable detail Buyer’s calculation of the Closing Statutory Value, the Section 338 Adjustment and the Final Adjustment Amount Shortfallbased thereon, (ii) a written certificate of an officer of Buyer certifying that the Subject Balance Sheet was prepared in accordance with the Accounting Principles, consistently applied, and setting forth in reasonable detail Buyer’s calculation of the Final Closing Statutory Value, the Final Section 338 Adjustment and the Final Adjustment Amount based thereon and (iii) reasonable supporting documentation with respect to the calculation of the amounts set forth on the Final Adjustment Statement. (c) Sellers shall pay have forty-five (45) days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of Closing Statutory Value, the Section 338 Adjustment and the Final Adjustment Amount based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company shall provide Sellers and their respective Representatives with reasonable access to the employees and Representatives of Buyer and its Affiliates (including the Transferred Companies) responsible for and knowledgeable about the information set forth in the Final Adjustment Statement and the Subject Balance Sheet (including the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and its Affiliates (including the Transferred Companies) related to the preparation or contents of the Final Adjustment Statement and the Subject Balance Sheet as Sellers or any of their respective Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or its Affiliates (including the Transferred Companies). (i) If Sellers disagree with the Final Adjustment Statement (including any amount or computation set forth therein) in good faith in any respect and on any basis other than as would conflict with the Accounting Principles, Sellers may, on or prior to the last day of the Review Period, deliver a notice to Buyer setting forth, in reasonable detail, each disputed item, or amount and the basis for Sellers’ disagreement therewith (the “Dispute Notice”). The Dispute Notice shall set forth, with respect to each disputed item, Sellers’ position as to the correct amount or computation that should have been included in the Final Adjustment Statement and as to the Final Adjustment Amount. (ii) If no Dispute Notice is delivered to Buyer with respect to any item in the Final Adjustment Statement on or prior to the last day of the Review Period, the amount or computation with respect to such item as set forth in the Final Adjustment Statement shall be deemed accepted by Sellers, whereupon the amount or computation of such item or items shall be final and binding on the parties. (iii) For a period of ten (10) Business Days beginning on the date that Buyer receives a Dispute Notice, if any, Buyer and Sellers shall endeavor in good faith to resolve by mutual agreement all matters identified in the Dispute Notice. In the event that the parties are unable to resolve by mutual agreement any matter in the Dispute Notice within such ten (10) Business Day period, Buyer or either Seller may engage PriceWaterhouse Coopers LLP, or if PriceWaterhouse Coopers LLP is unwilling or unable to serve, another accounting firm of national reputation, as mutually agreed by the parties hereto (the “Independent Accounting Firm”), to make a determination with respect to all matters in dispute. (iv) Buyer and Sellers will direct the Independent Accounting Firm to render a determination within thirty (30) Business Days after its retention, and Buyer, Sellers and Buyer shall pay to their respective employees and agents will cooperate with the Independent Accounting Firm during its engagement. Buyer, on the one hand, and Sellers, on the other hand, shall promptly (and in any event within ten (10) Business Days) after the Independent Accounting Firm’s engagement each submit to the Independent Accounting Firm their respective computations of the disputed items identified in the Dispute Notice and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other party. Each party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other party in such other party’s initial submission, which supplemental information shall be submitted to the Independent Accounting Firm (with a copy thereof to the other party) within five (5) Business Days after the first date on which both parties have submitted their respective initial submissions to the Independent Accounting Firm. The Independent Accounting Firm shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall reasonably cooperate and shall cause their Representatives to reasonably cooperate with such requests of the Independent Accounting Firm. The Independent Accounting Firm shall determine, based solely on the materials so presented by the parties and upon information received in response to such requests for additional or clarifying information and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report to Buyer and Sellers (the “Adjustment Report”) in which the Independent Accounting Firm shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the amounts and computations set forth in the Final Adjustment Statement solely as applicableto the disputed items and shall determine the appropriate Final Adjustment Amount on that basis. (v) Buyer and Sellers shall instruct the Independent Accounting Firm to set forth in the Adjustment Report, in reasonable detail, the Independent Accounting Firm’s determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to the Final Adjustment Statement, together with supporting calculations. In resolving any disputed item, the Independent Accounting Firm (1) shall be bound to the principles of this Section 2.5 and the terms of this Agreement, including requiring the Final Adjustment Statement being prepared in accordance with the Accounting Principles, (2) shall limit its review to matters specifically set forth in the Dispute Notice and (3) shall not assign a value to any item higher than the highest value for such item claimed by either party or less than the lowest value for such item claimed by either party. (vi) All fees and expenses relating to the work of the Independent Accounting Firm shall be shared equally by Buyer, on the one hand, and Sellers, on the other hand. The Adjustment Report, absent fraud or manifest error, shall be final and binding upon Buyer and Sellers, and shall be deemed a final arbitration award that is binding on each of Buyer and Sellers, and no party shall seek further recourse to courts, other tribunals or otherwise, other than to enforce the Adjustment Report. (vii) The final form of the balance sheet of the Transferred Companies as of the Closing Date as finally determined pursuant to this Section 2.5 is referred to herein as the “Final Balance Sheet”, the amount of the Section 338 Adjustment as finally determined pursuant to this Section 2.5 is referred to as the “Final Section 338 Adjustment” and the amount of the Closing Statutory Value calculated from the Final Balance Sheet is referred to as the “Final Closing Statutory Value”. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 2.5 represent the sole and exclusive method for determining the Final Balance Sheet, the Final Section 338 Adjustment and the Final Closing Statutory Value. (viii) For the avoidance of doubt, the Final Balance Sheet and the amounts of the Final Closing Statutory Value and Final Adjustment Amount calculated as provided hereunder and related thereto shall reflect the payment by the Company of the Initial Premium under the D2C Reinsurance Agreement and the Recapture Amounts under each of the Recapture Agreements, in each case in the amount of such payments as finally determined in accordance with the post-Closing payments as may be required herein, including pursuant to Section 2.10, Section 2.11 or Section 7.06closing adjustment provisions of such agreements.

Post-Closing Payments. (ai) If the Closing Date Adjusted Purchase Price Final Cash Consideration is greater less than the Adjusted Purchase Price determined in accordance with Section 2.06 Estimated Cash Consideration (the amount by which the Closing Date Adjusted Purchase Price exceeds the Adjusted Purchase Price herein referred to as such difference, the “Post-Closing Amount ExcessDeficit”), then Sellers Buyer and Holdco shall deliver, and in no event later than two Business Days following the date of determination of the Post-Closing Deficit, joint written instructions to the Escrow Agent instructing the Escrow Agent to release (A) to Buyer, the Post-Closing Deficit, unless the Post-Closing Deficit is equal to or greater than the Adjustment Escrow Amount, in which case such joint written instructions will instruct the Escrow Agent to pay release the full Adjustment Escrow Amount to Buyer, and (B) to Holdco, any remaining Adjustment Escrow Funds after first distributing the Post-Closing Deficit to Buyer out in accordance with Subsection (A) hereof (such remaining amount, the “Post-Closing Deficit Shortfall”), and the Sellers shall not be entitled to receive, and hereby automatically, and with no further action required on their part forever waive and discharge any rights in or to, all or a portion, as applicable, of the Adjustment Escrow Funds Amount with an amount aggregate value equal to the Post-Closing Amount ExcessDeficit. If the Adjustment Escrow Amount is insufficient to cover the entire Post-Closing Amount Excess exceeds Deficit, then each Holder shall promptly, and in no event later than five Business Days following the date of determination of the Post-Closing Deficit, pay such Holder’s Pro Rata Portion of the amount of the Escrow Funds (shortfall to Buyer in cash by wire transfer of immediately available funds to an account designated by Buyer. Buyer may recover any such Post-Closing Deficit Shortfall by withholding or setting off against the amount of such deficiency, the “Escrow Shortfall”), Sellers shall pay any Earnout Payment due to Buyer, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with be paid pursuant to Section 2.06, an amount equal to the Escrow Shortfall1.4. (bii) If the Adjusted Purchase Price determined in accordance with Section 2.06 Final Cash Consideration is greater than the Closing Date Adjusted Purchase Price Estimated Cash Consideration (the amount by which the Adjusted Purchase Price exceeds the Closing Date Adjusted Purchase Price herein referred to as such difference, the “Post-Closing Amount ShortfallIncrease”), then Buyer shall pay to Sellerspromptly, within five (5) and in no event later than two Business Days after following the Adjusted Purchase Price is finally determined in accordance with Section 2.06date of determination of the Post-Closing Increase, an amount equal (A) pay the Post-Closing Increase to Holdco and (B) simultaneously therewith, Buyer and Holdco shall deliver joint written instructions to the Closing Amount Shortfall. (c) Sellers shall pay Escrow Agent instructing the Escrow Agent to Buyerrelease the full Adjustment Escrow Funds to Holdco, and Buyer shall pay not be entitled to Sellersreceive, as applicableand hereby automatically, and with no further action required on its part, forever waives and discharges any post-Closing payments as may be required hereinrights in or to, including pursuant to Section 2.10, Section 2.11 or Section 7.06all of the Adjustment Escrow Funds.

Post-Closing Payments. (a) If the Closing Date Adjusted Purchase Price is greater than the Adjusted Purchase Price determined in accordance with Section 2.06 (the amount by which the Closing Date Adjusted Purchase Price exceeds the Adjusted Purchase Price herein referred to as the “Closing Amount Excess”), then Sellers and Buyer shall jointly instruct the Escrow Agent to pay to Buyer out of the Escrow Funds an amount equal to the Closing Amount Excess. If Excess (or, if the Closing Amount Excess exceeds is greater than the amount of cash in the Escrow Funds (the amount of such deficiencyexcess, the “Escrow Cash Shortfall”), then the full amount of cash in the Escrow Funds). If there is an Escrow Cash Shortfall, then, in addition to the cash distribution of the full amount of cash in the Escrow Funds as provided above, Sellers shall pay deliver to Buyer, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06written notice of an Escrow Cash Shortfall to Sellers, an amount in cash equal to the Escrow ShortfallCash Shortfall by cashier’s or certified check, or wire transfer of immediately available funds to the account designated by Buyer. (b) If the Adjusted Purchase Price determined in accordance with Section 2.06 is greater than the Closing Date Adjusted Purchase Price (the amount by which the Adjusted Purchase Price exceeds the Closing Date Adjusted Purchase Price herein referred to as the “Closing Amount Shortfall”), then Buyer shall pay deliver to Sellers, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06, an amount in cash equal to the Closing Amount ShortfallShortfall by cashier’s or certified check, or wire transfer of immediately available funds to the account designated by Sellers. (c) Sellers shall pay to Buyer, and Buyer shall pay to Sellers, as applicable, any post-Closing payments as may be required herein, including pursuant to Section 2.10, Section 2.11 or Section 7.06.

Post-Closing Payments. (a) If the Closing Date Adjusted Purchase Price is greater than the Adjusted Purchase Price determined in accordance with Section 2.06 (the amount by which the Closing Date Adjusted Purchase Price exceeds the Adjusted Purchase Price herein referred to as the “Closing Amount Excess”), then Sellers shall deliver to Buyer, within five (5) Business Days after written notice of a Closing Amount Excess to Sellers, a number of Class D-1 Units equal to the Closing Amount Excess divided by $14.7265, which shall be effected by Basic LP (or any Person to which Basic LP has transferred any Class D-1 Units) for no additional consideration pursuant to forfeiture and/or repurchase instruments reasonably satisfactory to Buyer. If Sellers do not have sufficient Class D-1 Units to satisfy the Closing Amount Excess (the amount of such deficiency, the “Equity Shortfall”), then, in addition to the delivery of Class D-1 Units as provided above, Sellers and Buyer shall jointly instruct the Escrow Agent to pay to Buyer out of the Escrow Funds an amount equal to the Closing Amount Excess. If the Closing Amount Excess exceeds the amount of the Escrow Funds (the amount of such deficiency, the “Escrow Shortfall”), Sellers shall pay to Buyer, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06, an amount equal to the Escrow Equity Shortfall. (b) If the Adjusted Purchase Price determined in accordance with Section 2.06 is greater than the Closing Date Adjusted Purchase Price (the amount by which the Adjusted Purchase Price exceeds the Closing Date Adjusted Purchase Price herein referred to as the “Closing Amount Shortfall”), then Buyer shall pay deliver to Sellers, within five (5) Business Days after the Adjusted Purchase Price is finally determined in accordance with Section 2.06, an amount of Class D-1 Units equal to the Closing Amount ShortfallShortfall divided by $14.7265, which shall be effected through an issuance to Basic LP of such Class D-1 Units pursuant to an assignment and assumption agreement in substantially the same form as the Issuance Agreement. (c) Sellers shall pay to Buyer, and Buyer shall pay to Sellers, as applicable, any post-Closing payments as may be required herein, including pursuant to Section 2.10, Section 2.11 or Section 7.06.