Common use of Preliminary Closing Statement Clause in Contracts

Preliminary Closing Statement. Seller shall cause the Manager or the Hotel accounting staff (“Seller’s Accountant”) to make such inventories, and examinations of the Hotel, and of the books and records of the Hotel as the Parties may reasonably deem necessary to make the required adjustments and Prorations to the Purchase Price as set forth in Sections 11.2 and 11.3 or any other provisions of this Agreement. Purchaser or its designated representative shall be allowed to be present at such inventories, and examinations. Based upon such inventories, and examinations, Seller’s Accountant shall prepare and deliver to the Parties on a Business Day not later than three (3) days prior to the Closing Date a preliminary closing statement (the “Preliminary Closing Statement”), which shall contain Prorations as of 11:59 p.m. (Central Time) on the day prior to the Closing Date (the “Cut-Off Time”). The Preliminary Closing Statement shall contain Seller’s Accountant’s best estimate of the amounts of the items required to be prorated and adjusted pursuant to this Agreement between Seller and Purchaser as of the Cut-Off Time. Following its receipt of the Preliminary Closing Statement, Purchaser shall review the Proposed Closing Statement and shall discuss with Seller’s Accountant any items which Purchaser may reasonably dispute. Seller and Purchaser shall prepare a final closing statement (the “Final Closing Statement”) reflecting the agreed upon items in the Preliminary Closing Statement, subject, to any adjustments made by Seller and Purchaser relating to the counts and calculations made in the three (3) days prior to Closing, but excluding any disputed items. The prorations referenced in the Final Closing Statement shall be the basis upon which the prorations and adjustments provided for under this Agreement shall be made at Closing.

Preliminary Closing Statement. Seller shall cause the Manager or the Hotel accounting staff At least five (“Seller’s Accountant”5) to make such inventories, and examinations of the Hotel, and of the books and records of the Hotel as the Parties may reasonably deem necessary to make the required adjustments and Prorations Business Days prior to the Purchase Price as set forth in Sections 11.2 and 11.3 or any other provisions of this Agreement. Purchaser or its designated representative shall be allowed to be present at such inventoriesClosing Date, and examinations. Based upon such inventories, and examinations, Seller’s Accountant Seller shall prepare and deliver to Buyer an unaudited balance sheet of the Parties Transferred Assets and Assumed Liabilities prepared in good faith by Seller on a Business Day not later than three an estimated basis as of the Adjustment Time (3) days prior the “Estimated Closing Balance Sheet”). Together with the Estimated Closing Balance Sheet (and based thereon to the Closing Date extent applicable), Seller shall deliver to Buyer a preliminary closing statement (the “Preliminary Closing Statement”), which shall contain Prorations as signed and attested to by the chief financial officer of 11:59 p.m. Seller, certifying Seller’s good faith calculation and estimate or computation (Central Timeincluding all calculations in reasonable detail) on of: (i) the day prior to the Closing Date Net Working Capital Adjustment (the “Cut-Off TimeEstimated Net Working Capital Adjustment”), and (ii) the Estimated Purchase Price. The Estimated Closing Balance Sheet and the Preliminary Closing Statement shall contain Seller’s Accountant’s best estimate of the amounts of the items required to be prorated Statement, and adjusted pursuant to this Agreement between Seller and Purchaser as of the Cut-Off Time. Following its receipt each element of the Preliminary Closing Statement, Purchaser shall review be prepared in accordance with the Proposed Accounting Principles and be accompanied by reasonable supporting detail. Buyer shall be entitled to comment on and request reasonable changes to the Estimated Closing Statement and shall discuss with Seller’s Accountant any items which Purchaser may reasonably dispute. Seller and Purchaser shall prepare a final closing statement (the “Final Closing Statement”) reflecting the agreed upon items in the Balance Sheet or Preliminary Closing Statement, subject, and Seller shall provide Buyer and its representatives access to any adjustments made by Seller and Purchaser information that Buyer reasonably requests relating to the counts and calculations made in the three (3) days prior to Closing, but excluding any disputed items. The prorations referenced in the Final Estimated Closing Balance Sheet or Preliminary Closing Statement and the preparation thereof. Seller shall be consider in good faith any changes Buyer proposes to the basis upon which Preliminary Closing Statement and revise such statement if, based on its good faith assessment, such changes are warranted. Buyer may accept the prorations and adjustments provided for under this Agreement shall be made at ClosingPreliminary Closing Statement without waiving its rights to challenge such position pursuant to Section 2.7(d).

Preliminary Closing Statement. Seller Not more than seventy-five (75) days following the Closing Date, Buyer shall prepare, or cause the Manager or the Hotel accounting staff (“Seller’s Accountant”) to make such inventories, and examinations of the Hotel, and of the books and records of the Hotel as the Parties may reasonably deem necessary to make the required adjustments and Prorations to the Purchase Price as set forth in Sections 11.2 and 11.3 or any other provisions of this Agreement. Purchaser or its designated representative shall be allowed to be present at such inventoriesprepared, and examinations. Based upon such inventories, and examinations, Seller’s Accountant shall prepare and deliver to the Parties on Seller a Business Day not later than three (3) days prior to the Closing Date a preliminary closing statement (the “Preliminary Closing Statement”)) setting forth Buyer’s calculation of each of the following, which shall contain Prorations together with reasonably detailed documentation supporting each calculation: (i) the amount of Cash as of 11:59 p.m. (Central Time) on the day immediately prior to the Closing Date Effective Time (the “CutPreliminary Cash Amount”); (i) the amount of Adjusted Net Working Capital as of immediately prior to the Effective Time (the “Preliminary Adjusted Net Working Capital Amount”); (i) the aggregate amount of all Polycom Indebtedness outstanding and unpaid as of immediately prior to the Effective Time (the “Preliminary Indebtedness Amount”), including a breakdown of the aggregate amount of all Paid-Off TimeIndebtedness outstanding and unpaid as of immediately prior to the Effective Time (the “Preliminary Paid-Off Indebtedness Amount”) and the aggregate amount of all Retained Indebtedness outstanding and unpaid as of immediately prior to the Effective Time (the “Preliminary Retained Indebtedness Amount”); and (i) the aggregate amount of all Polycom Transaction Expenses outstanding and unpaid as of immediately prior to the Effective Time (the “Preliminary Polycom Transaction Expense Amount”). The Preliminary Closing Statement shall contain Selleralso set forth Buyer’s Accountant’s best estimate calculation of the amounts amount of the items required “Preliminary Closing Date Cash Purchase Price”, which shall be equal to be prorated and adjusted pursuant to this Agreement between Seller and Purchaser as the sum of (A) the Cut-Off Time. Following its receipt of Base Cash Purchase Price, plus (B) the Preliminary Closing StatementCash Amount, Purchaser shall review plus (C) the Proposed Closing Statement and shall discuss with Seller’s Accountant any items amount, if any, by which Purchaser may reasonably dispute. Seller and Purchaser shall prepare a final closing statement (the “Final Closing Statement”) reflecting the agreed upon items in the Preliminary Closing StatementAdjusted Net Working Capital Amount exceeds the Upper Adjusted Net Working Capital Target or minus (D) the amount, subjectif any, to any adjustments made by Seller and Purchaser relating to the counts and calculations made in the three (3) days prior to Closing, but excluding any disputed items. The prorations referenced in the Final Closing Statement shall be the basis upon which the prorations Preliminary Adjusted Net Working Capital Amount is less than the Lower Adjusted Net Working Capital Target, minus (E) the Preliminary Indebtedness Amount, and adjustments provided for under this Agreement shall be made at Closingminus (F) the Preliminary Polycom Transaction Expense Amount.

Preliminary Closing Statement. The Final Closing Statement shall be prepared by Buyer in good faith and shall be certified by Buyer to be, as of the date prepared, its good faith estimate of Working Capital, Closing Equivalent Subscribers, the Capital Expenditure Adjustment, the debt adjustment calculated pursuant to Section 2.3(c) and Cash Consideration, as so adjusted, as applicable. Buyer shall allow Seller and its agents access, upon reasonable prior notice, at all reasonable times after the Closing Date to copies of the books, records and accounts of the Companies and promptly make available to Seller such information as Seller reasonably requests to allow Seller to examine the accuracy of the Final Closing Statement. Within thirty (30) days after the date that the Final Closing Statement is delivered by Buyer to Seller, Seller shall cause the Manager or the Hotel accounting staff (“Seller’s Accountant”) complete its examination thereof and may deliver to make such inventories, and examinations of the Hotel, and of the books and records of the Hotel as the Parties may reasonably deem necessary Buyer a written report setting forth any proposed adjustments to make the required adjustments and Prorations to the Purchase Price as any amounts set forth in Sections 11.2 and 11.3 or the Final Closing Statement; provided, however, that if Buyer does not comply with its obligations pursuant to the preceding sentence, such thirty (30) day period shall run from the day after the date on which Buyer complies with such obligations; provided, further, however, that if Buyer does not comply with its obligations pursuant to the preceding sentence within thirty (30) days after Seller has made any other provisions of this Agreement. Purchaser or its designated representative such request for access, there shall be allowed no adjustment in favor of Buyer pursuant to be present at such inventories, and examinationsthis Section 2.5. Based upon such inventories, and examinations, Seller’s Accountant shall prepare and deliver To the extent that Buyer does not provide to Seller the Parties on a Business Day not later than three Final Closing Statement within ninety (390) days prior to after the Closing Date a preliminary closing statement (in accordance with this Section 2.5, Buyer shall have no right to raise further adjustments in its favor. After submission of the “Preliminary Final Closing Statement”), which Buyer shall contain Prorations as have no right to raise further adjustments in its favor and after submission of 11:59 p.m. (Central Time) on the day prior Seller's report of any proposed adjustments, Seller shall have no right to the Closing Date (the “Cut-Off Time”)raise further adjustments in its favor. The Preliminary Closing Statement shall contain Seller’s Accountant’s best estimate If Seller notifies Buyer of its acceptance of the amounts of set forth in the items required to be prorated and adjusted pursuant to this Agreement between Seller and Purchaser as of the Cut-Off Time. Following its receipt of the Preliminary Final Closing Statement, Purchaser shall review or if Seller fails to deliver its report of any proposed adjustments within the Proposed Closing Statement and shall discuss with Seller’s Accountant any items which Purchaser may reasonably dispute. Seller and Purchaser shall prepare a final closing statement (the “Final Closing Statement”) reflecting the agreed upon items period specified in the Preliminary Closing Statementsecond preceding sentence, subject, to any adjustments made by Seller and Purchaser relating to the counts and calculations made in the three (3) days prior to Closing, but excluding any disputed items. The prorations referenced amounts set forth in the Final Closing Statement shall be conclusive, final and binding on the basis upon which parties as of the prorations last day of such period. Buyer and adjustments provided for Seller shall use good faith efforts to resolve any dispute involving the amounts set forth in the Final Closing Statement. If Seller and Buyer fail to agree on any amount set forth in the Final Closing Statement within fifteen (15) days after Buyer receives Seller's report pursuant to this Section 2.5, (a) then the parties shall retain a "Big Five" national independent accounting firm reasonably acceptable to Buyer and Seller (the "Post-Closing Referee") to make the final determination, under the terms of this Agreement Agreement, of any amounts under dispute. The Post-Closing Referee shall endeavor to resolve the dispute as promptly as practicable and the Post-Closing Referee's resolution of the dispute shall be made at Closingfinal and binding on the parties, and a judgment may be entered thereon in any court of competent jurisdiction; provided that in no event shall such resolution result in (i) amounts less than the amounts therefor (in the case of liabilities) or more than the amounts therefor (in the case of assets) set forth in Seller's written report pursuant to this Section 2.5(a) or (ii) amounts greater than the amounts therefor (in the case of liabilities) or less than the amounts therefor (in the case of assets) set forth in the Final Closing Statement. The costs and expenses of the Post-Closing Referee and its services rendered pursuant to this Section 2.5 shall be borne one-half by Buyer and one-half by Seller.

Preliminary Closing Statement. Seller shall cause the Manager or the Hotel accounting staff At least four (“Seller’s Accountant”4) to make such inventories, and examinations of the Hotel, and of the books and records of the Hotel as the Parties may reasonably deem necessary to make the required adjustments and Prorations Business Days prior to the Purchase Price as set forth in Sections 11.2 and 11.3 or any other provisions of this Agreement. Purchaser or its designated representative shall be allowed to be present at such inventoriesClosing Date, and examinations. Based upon such inventories, and examinations, Seller’s Accountant the Company shall prepare and deliver to Buyer an unaudited balance sheet of the Parties Company prepared in good faith by the Company on a Business Day not later than three (3) days prior an estimated basis as of the Adjustment Time, without giving effect to the Closing Date or the Transaction (the “Estimated Closing Balance Sheet”). Together with the Estimated Closing Balance Sheet (and based thereon to the extent applicable), the Company shall deliver to Buyer a preliminary closing statement (the “Preliminary Closing Statement”), which shall contain Prorations as signed and attested to by the chief financial officer of 11:59 p.m. the Company, certifying the Company’s good faith calculation and estimate or computation (Central Timeincluding all calculations in reasonable detail) on of: (i) the day prior to the amount of Closing Date Cash and Cash Equivalents (the “Cut-Off TimeEstimated Cash and Cash Equivalents”). The Preliminary Closing Statement shall contain Seller’s Accountant’s best estimate ; (ii) the Net Working Capital Adjustment (the “Estimated Net Working Capital Adjustment”); (iii) the amount of Unpaid Seller Expenses (the amounts of the items required “Estimated Unpaid Seller Expenses”), together with a final invoice or pay-off letter from each applicable third party payee to whom Unpaid Seller Expenses will be prorated and adjusted pursuant to this Agreement between Seller and Purchaser owing as of the Cut-Off TimeClosing; (iv) the aggregate amount of Closing Indebtedness (the “Estimated Closing Indebtedness”), together with a spreadsheet showing the amount of such Closing Indebtedness owing to each creditor thereof; (v) the aggregate amount of Unpaid Taxes (the “Estimated Unpaid Taxes”); (vi) the aggregate amount of all Closing Payroll Taxes, together with a spreadsheet showing the amount thereof to be paid to the applicable Tax Authorities with respect to each Optionholder, including information about which payments to Optionholders are subject to withholding and payroll Taxes; and (vii) using the amounts referred to in clauses (i) through (vi), the Estimated Closing Purchase Price and the Per Share Closing Purchase Price. Following its receipt The Estimated Closing Balance Sheet and the Preliminary Closing Statement, and each element of the Preliminary Closing Statement, Purchaser shall review be prepared in accordance with the Proposed Accounting Principles and shall be accompanied by reasonable supporting detail. Buyer shall be entitled to comment on and request reasonable changes to the Estimated Closing Balance Sheet or Preliminary Closing Statement, and the Company shall provide Buyer and its representatives access to information that Buyer reasonably requests relating to the Estimated Closing Balance Sheet, Preliminary Closing Statement or the preparation thereof. The Company shall consider in good faith any changes Buyer proposes to the Preliminary Closing Statement and shall discuss with Seller’s Accountant any items which Purchaser revise such statement if, based on their good faith assessment, such changes are warranted. Buyer may reasonably dispute. Seller and Purchaser shall prepare a final closing statement (the “Final Closing Statement”) reflecting the agreed upon items in accept the Preliminary Closing Statement, subject, Statement without waiving its rights to any adjustments made by Seller and Purchaser relating challenge such position pursuant to the counts and calculations made in the three (3) days prior to Closing, but excluding any disputed items. The prorations referenced in the Final Closing Statement shall be the basis upon which the prorations and adjustments provided for under this Agreement shall be made at ClosingSection 1.4(i).

Preliminary Closing Statement. Seller Not more than sixty (60) days following the Closing Date, Buyer shall prepare, or cause the Manager or the Hotel accounting staff (“Seller’s Accountant”) to make such inventories, and examinations of the Hotel, and of the books and records of the Hotel as the Parties may reasonably deem necessary to make the required adjustments and Prorations to the Purchase Price as set forth in Sections 11.2 and 11.3 or any other provisions of this Agreement. Purchaser or its designated representative shall be allowed to be present at such inventoriesprepared, and examinations. Based upon such inventories, and examinations, Seller’s Accountant shall prepare and deliver to the Parties on Seller a Business Day not later than three (3) days prior to the Closing Date a preliminary closing statement (the “Preliminary Closing Statement”), which shall contain Prorations in substantially similar form as the Sample Statement, setting forth a balance sheet of Company, as of 11:59 p.m. the Closing, together with Buyer’s good-faith calculation of each of the following, together with reasonably detailed documentation supporting each calculation: (Central Timei) on the day prior to amount of Cash; (ii) the Closing Date Adjusted Net Working Capital Amount and the Adjusted Net Working Capital Target, and the amount by which the Adjusted Net Working Capital Amount exceeds, or is less than, the Adjusted Net Working Capital Target, in each case consistent with the methodologies set forth in the Illustrative NWC Calculation and in substantially similar form thereto; (iii) the “Cutamount of Indebtedness, together with a breakdown of Paid-Off Time”Indebtedness and Retained Indebtedness; (iv) the amount of Company Transaction Expenses; and (v) the Estimated Seller Proceeds, consistent with the Sample Statement, but based upon Buyer’s good-faith calculation of the component amounts pursuant to this Section 2.04(a). The If Buyer fails to timely deliver the Preliminary Closing Statement shall contain Seller’s Accountant’s best estimate of the amounts of the items required to be prorated and adjusted Seller pursuant to this Agreement between Section 2.04(a) (including pursuant to the following clause (y)), Seller and Purchaser as of shall have the Cut-Off Time. Following its receipt of right to elect, by written notice to Buyer, to either (x) determine that the Preliminary Closing Statement, Purchaser shall review the Proposed Estimated Closing Statement and shall discuss with Seller’s Accountant any items which Purchaser may reasonably dispute. Seller and Purchaser shall prepare a final closing statement (the “Final Closing Statement”) reflecting the agreed upon items in the Preliminary Closing Statement, subject, to any adjustments made Estimated NWC Statement delivered by Seller and Purchaser relating to at the counts and calculations made in the three (3) days prior to Closing, but excluding any disputed items. The prorations referenced in Closing collectively shall be deemed the Final Closing Statement for all purposes under this Agreement, which determination shall be binding upon the basis upon which Parties, or (y) require that Buyer deliver the prorations and adjustments provided for under this Agreement shall be made at ClosingPreliminary Closing Statement to Seller within ten (10) days of Seller’s demand therefor.