Preparation of Final Regulatory and Working Capital. (i) As soon as practicable, but in no event later than the 60th day after the Closing, Seller shall deliver to Buyer a combined balance sheet, prepared on the basis that the Closing was effective at 11:59 P.M., New York City time, on the day immediately prior to the Closing Date (the “Closing Date Financial Statements”). At the time of the delivery of the Closing Date Financial Statements, Seller shall also deliver to Buyer calculations of the Regulatory Amount for the Regulated Entities (the “Closing Regulated Entity Regulatory Capital Statement”), the amount of the Unregulated Entity Net Working Capital for all Unregulated Entities (the “Closing Unregulated Entity Working Capital Statement”), the Cash Adjustment (the “Cash Adjustment Statement”) and the Capital Amount (the “Capital Amount Statement” and, together with the Closing Regulated Entity Regulatory Capital Statement, the Closing Unregulated Entity Working Capital Statement and the Cash Adjustment Statement, the “Capital Statements”), in each case prepared in good faith in accordance with IFRS consistently applied and on a basis consistent with the accounting policies, practices, procedures, valuation methods and principles used in preparing the Unaudited Financial Statements in respect of the Transferred Entities. (ii) During the period of the preparation of the Closing Date Financial Statements and the Capital Statements, any review or any dispute as provided in this Section 2.3, Buyer and Seller shall, and shall cause each of their Affiliates (and, in the case of Buyer, the Employees), to: (i) provide each other party and its Representatives with reasonable access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees (including, in the case of Buyer, the Employees) (to the extent any of such books, records or employees relate to the Closing Date Financial Statements, the Capital Statements and the Dispute Notice) and permit copies to be made of any of the foregoing documentation and (ii) cooperate fully with such other party and its Representatives as reasonably requested, including the provision on a timely basis of all information reasonably relevant for purposes of the Capital Statements. (iii) After receipt of the Capital Statements, Buyer shall have 30 days to review such statements. Unless Buyer delivers written notice to Seller on or prior to the 30th day after Seller’s delivery of the Capital Statements stating that Buyer has objections to either or both statements, which notice sets forth, in reasonable detail disagreement therewith (such notice, the “Dispute Notice”), Buyer shall be deemed to have accepted and agreed to the statements. Matters included in such Capital Statements which are not included in the Dispute Notice, shall be deemed to be accepted by Buyer (“Resolved Items”) and any amounts included within the Resolved Items shall be deemed to be final, binding and conclusive. If Buyer timely delivers a Dispute Notice, Seller and Buyer shall, within 30 days (or such longer period as Seller and Buyer may agree in writing) following receipt by Seller of the Dispute Notice (each such period, a “Resolution Period”), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive. (iv) Any amounts remaining in dispute at the conclusion of the Resolution Period (the “Unresolved Items”) shall be submitted by Buyer and Seller to Ernst & Young LLP or if such firm cannot or will not serve such other firm as agreed to in writing by the parties (the “CPA Firm”) immediately after the expiration of the Resolution Period or as soon as practicable after Buyer and Seller have engaged the CPA Firm. Seller and Buyer agree to use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable. Each party agrees to execute, if requested by the CPA Firm, an engagement letter with the CPA Firm containing reasonable terms and to provide the CPA Firm such work papers and other documents and information related to the Unresolved Items as the CPA Firm may reasonably request if available to such party or, in the case of Buyer, its Subsidiaries, or, in the case of Seller, its Affiliates (or their accountants or auditors). The CPA Firm shall act as an arbitrator and not as an expert, to determine, based on the provisions of this Section 2.3(a), only the Unresolved Items; provided, however, that the CPA Firm shall have authority to determine, and the term “Unresolved Items” as used in this Section 2.3(a) shall mean, only the amount(s) contained in such Capital Statements and no other matter whatsoever, absent a written agreement to the contrary by Buyer and Seller; provided, further, that the determination of the Unresolved Items provided by the CPA Firm must be made in accordance with the standards and definitions in this Agreement, and must be limited to the range between and including the amounts proposed by Seller and Buyer for the resolution of the specific Unresolved Item. Seller and Buyer shall request that the CPA Firm provide, within 30 days after the submission of the Unresolved Items to the CPA Firm, a written statement setting forth (x) its determination of the Unresolved Items and (y) its calculation of the Capital Amount based upon (A) the amount of Resolved Items and (B) its determination of the Unresolved Items (such amount, the “Final Capital Amount”). Such written statement shall be delivered to Buyer and Seller and absent manifest error shall be final, binding and conclusive on and with respect to Buyer and Seller and may be entered in any court having jurisdiction. (v) Within five Business Days following either (i) an agreement or deemed agreement by Buyer and Seller as to the Final Capital Amount or (ii) the CPA Firm’s determination of all Unresolved Items, (x) if the Final Capital Amount is negative, Seller shall pay to Buyer the absolute value of the Capital Amount or (y) if the Final Capital Amount is positive, Buyer shall pay to Seller the Capital Amount. (vi) The parties agree that, if at the time Buyer is required to make a payment under clause (v) above, there are any accounts receivables that were outstanding at the Closing that have not been collected (such accounts receivable, “Unpaid Receivables”), Buyer may reduce the amount it is required to pay Seller under clause (v) at such time by the amount of the Unpaid Receivables and shall promptly thereafter as remitted to Buyer or its Affiliates pay in US Dollars to Seller all amounts collected in respect of the Unpaid Receivables. If by the first anniversary of the Closing Seller shall not have been paid by Buyer the full amount of all Unpaid Receivables then Buyer shall within five Business Days thereafter pay to Seller in US Dollars any such amounts that have not been paid to Seller. (vii) In the event Buyer and Seller submit any Unresolved Items to the CPA Firm for resolution as provided in Section 2.3(a)(iv) above, the fees and expenses of such CPA Firm will be borne pro rata by Buyer and Seller based on the amount of deviation of the determination of the Capital Amount as set forth in the applicable Dispute Notice and the Final Capital Amount made by the CPA Firm, such allocation of fees and expenses to be included in the determination made by the CPA Firm. (viii) Any amounts due under this Section 2.3 shall be paid with interest accruing on a daily basis at the Applicable Rate.
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Samples: Stock Purchase Agreement (BlackRock Inc.), Stock Purchase Agreement (Barclays Bank PLC /Eng/)
Preparation of Final Regulatory and Working Capital. (i) As soon as practicable, but in no event later than the 60th day after the Closing, Seller shall deliver to Buyer a combined balance sheet, prepared on the basis that the Closing was effective at as of 11:59 P.M., New York City time, P.M. on the day immediately prior to the Closing Date (the “Closing Date Financial Statements”). At the time of the delivery of the Closing Date Financial Statements, Seller shall also deliver to Buyer (A) calculations of the Regulatory Amount for the Regulated Entities (the “amount of Closing Regulated Entity Actual Capital and Closing Required Regulatory Capital Statement”)for each Regulated Entity, (B) calculations of the amount of Closing Actual Cash and Closing Required Regulatory Cash for each Regulated Entity, (C) calculations of the Unregulated Entity amount of Closing Net Working Capital for all (i) each Regulated Entity Group on a consolidated basis for such group and (ii) the Remaining Unregulated Entities taken as a whole, and (D) a balance sheet of each Regulated Entity Group on a consolidated basis for such group and the Remaining Unregulated Entities, taken as a whole, as of immediately prior to the Closing, which balance sheet shall include a liability line item (for all of the Closing Intercompany Loans (the “Closing Unregulated Entity Working Capital Statement”), the Cash Adjustment items referred to in clauses (the “Cash Adjustment Statement”A) and the Capital Amount through (the “Capital Amount Statement” and, together with the Closing Regulated Entity Regulatory Capital Statement, the Closing Unregulated Entity Working Capital Statement and the Cash Adjustment Statement, D) hereof are collectively referred to herein as the “Capital Statements”), in each case . The Closing Date Financial Statements shall be prepared in good faith in accordance with IFRS consistently applied and on a basis consistent with the accounting policies, practices, procedures, valuation methods and principles used in preparing the Unaudited Financial Statements in respect of the Transferred Entities; provided that in the case of those referred to in clauses (A) and (B) above, the applicable accounting standards shall not be IFRS, but shall instead be the applicable regulatory accounting provisions.
(ii) During the period of the preparation of the Closing Date Financial Statements and the Capital Statements, any review or any dispute as provided in this Section 2.3, Buyer and Seller shall, and shall cause each of their Affiliates (and, in the case of Buyer, the Employees), to: (iA) provide each other party and its Representatives with reasonable access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees (including, in the case of Buyer, the Employees) (to the extent any of such books, records or employees relate to the Closing Date Financial Statements, the Capital Statements and the Dispute Notice) and permit copies to be made of any of the foregoing documentation and (iiB) cooperate fully with such other party and its Representatives as reasonably requested, including the provision on a timely basis of all information reasonably relevant for purposes of the Capital Statements. In connection with the preparation of the Closing Date Financial Statements and the Capital Statements, Buyer will make fully available to Seller employees of Buyer who were Employees and were responsible for, had knowledge of or otherwise participated in respect of the preparation of financial statements to assist Seller in its preparation of the Closing Date Financial Statements and the Capital Statements. Seller shall bear all costs incurred in preparing the Closing Date Financial Statements and the Capital Statements other than any costs associated with employees of Buyer and its Affiliates.
(iii) After receipt of the Capital Statements, Buyer shall have 30 60 days to review such statements. Unless Buyer delivers written notice to Seller on or prior to the 30th 60th day after Seller’s delivery of the Capital Statements stating that Buyer has objections to either or both statements, which notice sets forth, in reasonable detail disagreement therewith (such notice, the “Dispute Notice”), Buyer shall be deemed to have accepted and agreed to the statements. Matters included in such Capital Statements which are not included in the Dispute Notice, shall be deemed to be accepted by Buyer (“Resolved Items”) and any amounts included within the Resolved Items shall be deemed to be final, binding and conclusive. If Buyer timely delivers a Dispute Notice, Seller and Buyer shall, within 30 days (or such longer period as Seller and Buyer may agree in writing) following receipt by Seller of the Dispute Notice (each such period, a “Resolution Period”), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive.
(iv) Any amounts remaining in dispute at the conclusion of the Resolution Period (the “Unresolved Items”) shall be submitted by Buyer and Seller to Ernst & Young LLP or if such firm cannot or will not serve such other firm as agreed to in writing by the parties (the “CPA Firm”) immediately after the expiration of the Resolution Period or as soon as practicable after Buyer and Seller have engaged the CPA Firm. Seller and Buyer agree to shall use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable. Each party agrees to shall execute, if requested by the CPA Firm, an engagement letter with the CPA Firm containing reasonable terms and to provide the CPA Firm such work papers and other documents and information related to the Unresolved Items as the CPA Firm may reasonably request if available to such party or, in the case of Buyer, its Subsidiaries, or, in the case of Seller, its Affiliates (or their accountants or auditors). The CPA Firm shall act as an arbitrator and not as an expert, to determine, based on the provisions of this Section 2.3(a), only the Unresolved Items; provided, however, that the CPA Firm shall have authority to determine, and the term “Unresolved Items” as used in this Section 2.3(a) shall mean, only the amount(s) contained in such Capital Statements and no other matter whatsoever, absent a written agreement to the contrary by Buyer and Seller; provided, further, that the determination of the Unresolved Items provided by the CPA Firm must be made in accordance with the standards and definitions in this Agreement, and must be limited to the range between and including the amounts proposed by Seller and Buyer for the resolution of the specific Unresolved Item. Seller and Buyer shall request that the CPA Firm provide, within 30 days after the submission of the Unresolved Items to the CPA Firm, a written statement setting forth (xA) its determination of the Unresolved Items and (yB) its to the extent Unresolved Items affect the CPA Firm’s calculation of any of (I) Closing Actual Cash or Closing Required Regulatory Cash for each Regulated Entity, (II) Closing Actual Capital or Closing Required Regulatory Capital for each Regulated Entity or (III) the Closing Net Working Capital Amount for (i) each Regulated Entity Group on a consolidated basis for such group and (ii) the Remaining Unregulated Entities taken as a whole, as applicable, in each case based upon (Aaa) the amount of Resolved Items and (Bbb) its determination of the Unresolved Items (such amount, the “Final Capital Amount”)Items. Such written statement shall be delivered to Buyer and Seller and absent manifest error shall be final, binding and conclusive on and with respect to Buyer and Seller and may be entered in any court having jurisdiction.
(v) Within five Business Days following either (iA) an agreement or deemed agreement by Buyer and Seller as to the Final Closing Net Working Capital Amount calculations or (iiB) the CPA Firm’s determination of all Unresolved Items with respect to each applicable Person or Persons Net Working Capital (the Closing Net Working Capital as determined in accordance with clause (A) or (B) above, the “Final Closing Net Working Capital”), (I) if the Final Closing Net Working Capital with respect to a Regulated Entity Group is negative with respect to such Regulated Entity Group, Seller shall pay to Buyer either in cash in U.S. Dollars or, as directed by Buyer, through an offset in, or transfer to Buyer of the benefit of, an equal amount of a Closing Intercompany Loan issued to Seller or one of its Subsidiaries by the relevant Regulated Entity the absolute value of the Final Closing Net Working Capital with respect to such Regulated Entity Group, (II) if the Final Closing Net Working Capital with respect to the Remaining Unregulated Entities taken as a whole is negative Seller shall pay to Buyer in cash in U.S. Dollars or, as directed by Buyer, through an offset in, or transfer to Buyer of the benefit of, an equal amount of a Closing Intercompany Loan issued by the relevant Unregulated Entity (or Unregulated Entities) the absolute value of the Final Closing Net Working Capital with respect to such Unregulated Entities, (III) if the Final Closing Net Working Capital is positive with respect to a Regulated Entity Group on a consolidated basis for such group, Buyer shall pay to Seller in cash in U.S. Dollars the Final Closing Net Working Capital with respect to such Regulated Entity Group on a consolidated basis for such group and/or (IV) if the Final Closing Net Working Capital with respect to the Remaining Unregulated Entities taken as a whole is positive, Buyer shall pay to Seller in cash in U.S. Dollars the Final Closing Net Working Capital with respect to such entities. If following the Closing any Regulated Entity has not satisfied the Closing Regulatory Capital Requirement or the Closing Regulatory Cash Requirement, then within five Business Days following the earlier of (aa) an agreement or deemed agreement by Buyer and Seller as to (x) Closing Actual Cash and Closing Required Regulatory Cash, and (y) Closing Actual Capital and Closing Required Regulatory Capital and (bb) the CPA Firm’s determination of all Unresolved Items, (x) if the Final Capital Amount is negative, Seller shall pay to Buyer the absolute value amounts of the Capital Amount or (y) if the Final Capital Amount is positive, Buyer shall pay to Seller the Capital Amountsuch deficit.
(vi) The parties agree that, if at the time If Buyer is required to make a payment under clause (v) aboveof the Buyer’s Purchase Price Adjustment, and there are any accounts receivables receivable that were outstanding at the Closing that have not been collected (other than in respect of receivables representing Tax refunds) (such accounts receivable, “Unpaid Receivables”)) and that have not been collected as of the time of such payment, Buyer may reduce the amount it is required to pay to Seller under clause (v) at such time by the amount of the such Unpaid Receivables and (aa) Buyer shall promptly thereafter as remitted to Buyer or its Affiliates pay in US Dollars to Seller all amounts collected such reduced amount or portions thereof in respect U.S. Dollars at the earlier of the (i) no later than 30 days after receipt of payments on such Unpaid Receivables. If by , and (ii) for any amount remaining unpaid, the first anniversary of the Closing (for the avoidance of doubt, regardless of collection of any Unpaid Receivables); and (bb) to the extent there are Tax Extraction Costs in respect of payment of the Buyer’s Purchase Price Adjustment, the Buyer’s Purchase Price Adjustment shall be reduced by such Tax Extraction Costs. On the date that the Final Closing Net Working Capital is determined, Buyer shall provide Seller shall not have been paid with a written report that details the amounts of Unpaid Receivables collected (on an account-by-account basis) by Buyer as of such date, and thereafter until such time that Buyer’s obligation to pay Seller in respect of Unpaid Receivables shall have ceased or been satisfied in full, Buyer shall provide such a report not less frequently than once every three-month period for the Unpaid Receivables collected during the three-month period preceding the date of such written report. Notwithstanding the first sentence of this Section 2.3(a)(vi), to the extent the Buyer’s Purchase Price Adjustment is greater than $100,000,000, Buyer shall pay to Seller the amount of the Buyer’s Purchase Price Adjustment in excess of $100,000,000 (the “Excess Amount”) at such time as Buyer determines in its discretion; provided, that interest shall accrue on a daily basis with respect to any portion of the Excess Amount that remains unpaid after six months following the Closing Date at the Applicable Rate in effect from time to time for the period starting from the date that is three months after the Closing Date and ending on the date of the full payment of the Excess Amount; provided, further, that notwithstanding anything in the contrary in the foregoing, Buyer shall pay to Seller, in any event, the full amount of all Unpaid Receivables then the Buyer’s Purchase Price Adjustment by not later than the one year anniversary of the Closing.
(vii) Buyer shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to minimize or eliminate any Tax Extraction Costs. If Buyer proposes to make a payment net of Tax Extraction Costs, Buyer shall make the payment net of its estimate of the Tax Extraction Costs, and concurrently with making such payment, Buyer shall provide a written calculation of the Tax Extraction Costs to Seller, which shall include a schedule with reasonable detail supporting the Buyer’s calculation of the Tax Extraction Costs. If Seller disagrees with the amount of the Tax Extraction Costs that Buyer calculated, and such dispute cannot be resolved by the parties in good faith within five Business Days thereafter 30 days from the date the payment is made, the parties shall use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable, in accordance with the principles set forth in Section 2.3(a)(iv). If the CPA Firm, using the same parameters that are set forth in Section 2.3(a)(iv), concludes that the Tax Extraction Costs amount that Buyer deducted at the time the payment was made is greater than the amount that the Tax Extraction Costs should have been, Buyer shall pay the difference to Seller in US Dollars any Seller. If Buyer is required to make a payment pursuant to this Section 2.3(a)(vii), such amounts that have not been payment shall be made as promptly as practicable following the determination of the amount required to be paid by Buyer to Seller.
(viiviii) No payments shall be due under clause (v) above with respect to amounts that Seller or any of its Subsidiaries did not distribute or declare from a Transferred Entity prior to the Closing because of a limitation or prohibition arising under a Law until such time, if occurring prior to the second anniversary of the Closing, as such limitation or prohibition is no longer in effect; provided, that if such limitation or prohibition would have ceased to exist if the Closing had not occurred and Buyer or any of its Controlled Affiliates, directly or indirectly, takes any action outside the ordinary course of business (determined based on the ordinary course of business of Buyer or the applicable Controlled Affiliate prior to the Closing) that causes such limitation or prohibition to remain in effect on the day prior to the second anniversary of the Closing, such limitation or prohibition shall be deemed to no longer be in effect; provided, further that Buyer shall use commercially reasonable efforts to cause such limitation or prohibition to be inapplicable to the extent such efforts would not be reasonably expected to result in any material detriment to Buyer or any of its Significant Subsidiaries. For the avoidance of doubt, the preceding sentence shall not limit the obligation of Buyer with respect to any payments due under clause (v) above to the extent that any limitation or prohibition arising under a Law on the distribution of cash or declaration of cash dividends from a Transferred Entity arises following the Closing as a result of any actions taken by Buyer after the Closing.
(ix) In the event Buyer and Seller submit any Unresolved Items to the CPA Firm for resolution as provided in Section 2.3(a)(iv) above, the fees and expenses of such CPA Firm will be borne pro rata by Buyer and Seller based on the amount of deviation of the determination of the Capital Amount Unresolved Items as set forth in the applicable Dispute Notice and the Final Capital Amount final resolution made by the CPA Firm, such allocation of fees and expenses to be included in the determination made by the CPA Firm.
(viii) Any amounts due under this Section 2.3 shall be paid with interest accruing on a daily basis at the Applicable Rate.
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Preparation of Final Regulatory and Working Capital. (i) As soon as practicable, but in no event later than the 60th day after the Closing, Seller shall deliver to Buyer a combined balance sheet, prepared on the basis that the Closing was effective at as of 11:59 P.M., New York City time, P.M. on the day immediately prior to the Closing Date (the “Closing Date Financial Statements”). At the time of the delivery of the Closing Date Financial Statements, Seller shall also deliver to Buyer (A) calculations of the Regulatory Amount for the Regulated Entities (the “amount of Closing Regulated Entity Actual Capital and Closing Required Regulatory Capital Statement”)for each Regulated Entity, (B) calculations of the amount of Closing Actual Cash and Closing Required Regulatory Cash for each Regulated Entity, (C) calculations of the Unregulated Entity amount of Closing Net Working Capital for all (i) each Regulated Entity Group on a consolidated basis for such group and (ii) the Remaining Unregulated Entities taken as a whole, and (D) a balance sheet of each Regulated Entity Group on a consolidated basis for such group and the Remaining Unregulated Entities, taken as a whole, as of immediately prior to the Closing, which balance sheet shall include a liability line item (for all of the Closing Intercompany Loans (the “Closing Unregulated Entity Working Capital Statement”), the Cash Adjustment items referred to in clauses (the “Cash Adjustment Statement”A) and the Capital Amount through (the “Capital Amount Statement” and, together with the Closing Regulated Entity Regulatory Capital Statement, the Closing Unregulated Entity Working Capital Statement and the Cash Adjustment Statement, D) hereof are collectively referred to herein as the “Capital Statements”), in each case . The Closing Date Financial Statements shall be prepared in good faith in accordance with IFRS consistently applied and on a basis consistent with the accounting policies, practices, procedures, valuation methods and principles used in preparing the Unaudited Financial Statements in respect of the Transferred Entities; provided that in the case of those referred to in clauses (A) and (B) above, the applicable accounting standards shall not be IFRS, but shall instead be the applicable regulatory accounting provisions.
(ii) During the period of the preparation of the Closing Date Financial Statements and the Capital Statements, any review or any dispute as provided in this Section 2.3, Buyer and Seller shall, and shall cause each of their Affiliates (and, in the case of Buyer, the Employees), to: (iA) provide each other party and its Representatives with reasonable access during normal business hours upon reasonable advance notice to its and their relevant books, records and employees (including, in the case of Buyer, the Employees) (to the extent any of such books, records or employees relate to the Closing Date Financial Statements, the Capital Statements and the Dispute Notice) and permit copies to be made of any of the foregoing documentation and (iiB) cooperate fully with such other party and its Representatives as reasonably requested, including the provision on a timely basis of all information reasonably relevant for purposes of the Capital Statements. In connection with the preparation of the Closing Date Financial Statements and the Capital Statements, Buyer will make fully available to Seller employees of Buyer who were Employees and were responsible for, had knowledge of or otherwise participated in respect of the preparation of financial statements to assist Seller in its preparation of the Closing Date Financial Statements and the Capital Statements. Seller shall bear all costs incurred in preparing the Closing Date Financial Statements and the Capital Statements other than any costs associated with employees of Buyer and its Affiliates.
(iii) After receipt of the Capital Statements, Buyer shall have 30 60 days to review such statements. Unless Buyer delivers written notice to Seller on or prior to the 30th 60th day after Seller’s delivery of the Capital Statements stating that Buyer has objections to either or both statements, which notice sets forth, in reasonable detail disagreement therewith (such notice, the “Dispute Notice”), Buyer shall be deemed to have accepted and agreed to the statements. Matters included in such Capital Statements which are not included in the Dispute Notice, shall be deemed to be accepted by Buyer (“Resolved Items”) and any amounts included within the Resolved Items shall be deemed to be final, binding and conclusive. If Buyer timely delivers a Dispute Notice, Seller and Buyer shall, within 30 days (or such longer period as Seller and Buyer may agree in writing) following receipt by Seller of the Dispute Notice (each such period, a “Resolution Period”), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive.
(iv) Any amounts remaining in dispute at the conclusion of the Resolution Period (the “Unresolved Items”) shall be submitted by Buyer and Seller to Ernst & Young LLP or if such firm cannot or will not serve such other firm as agreed to in writing by the parties (the “CPA Firm”) immediately after the expiration of the Resolution Period or as soon as practicable after Buyer and Seller have engaged the CPA Firm. Seller and Buyer agree to shall use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable. Each party agrees to shall execute, if requested by the CPA Firm, an engagement letter with the CPA Firm containing reasonable terms and to provide the CPA Firm such work papers and other documents and information related to the Unresolved Items as the CPA Firm may reasonably request if available to such party or, in the case of Buyer, its Subsidiaries, or, in the case of Seller, its Affiliates (or their accountants or auditors). The CPA Firm shall act as an arbitrator and not as an expert, to determine, based on the provisions of this Section 2.3(a), only the Unresolved Items; provided, however, that the CPA Firm shall have authority to determine, and the term “Unresolved Items” as used in this Section 2.3(a) shall mean, only the amount(s) contained in such Capital Statements and no other matter whatsoever, absent a written agreement to the contrary by Buyer and Seller; provided, further, that the determination of the Unresolved Items provided by the CPA Firm must be made in accordance with the standards and definitions in this Agreement, and must be limited to the range between and including the amounts proposed by Seller and Buyer for the resolution of the specific Unresolved Item. Seller and Buyer shall request that the CPA Firm provide, within 30 days after the submission of the Unresolved Items to the CPA Firm, a written statement setting forth (xA) its determination of the Unresolved Items and (yB) its to the extent Unresolved Items affect the CPA Firm’s calculation of any of (I) Closing Actual Cash or Closing Required Regulatory Cash for each Regulated Entity, (II) Closing Actual Capital or Closing Required Regulatory Capital for each Regulated Entity or (III) the Closing Net Working Capital Amount for (i) each Regulated Entity Group on a consolidated basis for such group and (ii) the Remaining Unregulated Entities taken as a whole, as applicable, in each case based upon (Aaa) the amount of Resolved Items and (Bbb) its determination of the Unresolved Items (such amount, the “Final Capital Amount”)Items. Such written statement shall be delivered to Buyer and Seller and absent manifest error shall be final, binding and conclusive on and with respect to Buyer and Seller and may be entered in any court having jurisdiction.
(v) Within five Business Days following either (iA) an agreement or deemed agreement by Buyer and Seller as to the Final Closing Net Working Capital Amount calculations or (iiB) the CPA Firm’s determination of all Unresolved ItemsItems with respect to each applicable Person or Persons Net Working Capital (the Closing Net Working Capital as determined in accordance with clause (A) or (B) above, the “Final Closing Net Working Capital”), (xI) if the Final Closing Net Working Capital Amount with respect to a Regulated Entity Group is negativenegative with respect to such Regulated Entity Group, Seller shall pay to Buyer either in cash in U.S. Dollars or, as directed by Buyer, through an offset in, or transfer to Buyer of the benefit of, an equal amount of a Closing Intercompany Loan issued to Seller or one of its Subsidiaries by the relevant Regulated Entity the absolute value of the Final Closing Net Working Capital Amount or with respect to such Regulated Entity Group, (yII) if the Final Closing Net Working Capital Amount with respect to the Remaining Unregulated Entities taken as a whole is negative Seller shall pay to Buyer in cash in U.S. Dollars or, as directed by Buyer, through an offset in, or transfer to Buyer of the benefit of, an equal amount of a Closing Intercompany Loan issued by the relevant Unregulated Entity (or Unregulated Entities) the absolute value of the Final Closing Net Working Capital with respect to such Unregulated Entities, (III) if the Final Closing Net Working Capital is positive with respect to a Regulated Entity Group on a consolidated basis for such group, Buyer shall pay to Seller in cash in U.S. Dollars the Final Closing Net Working Capital with respect to such Regulated Entity Group on a consolidated basis for such group and/or (IV) if the Final Closing Net Working Capital with respect to the Remaining Unregulated Entities taken as a whole is positive, Buyer shall pay to Seller in cash in U.S. Dollars the Final Closing Net Working Capital Amount.
(vi) The parties agree that, if at the time Buyer is required with respect to make a payment under clause (v) above, there are any accounts receivables that were outstanding at such entities. If following the Closing that have any Regulated Entity has not been collected (such accounts receivable, “Unpaid Receivables”), Buyer may reduce the amount it is required to pay Seller under clause (v) at such time by the amount of the Unpaid Receivables and shall promptly thereafter as remitted to Buyer or its Affiliates pay in US Dollars to Seller all amounts collected in respect of the Unpaid Receivables. If by the first anniversary of satisfied the Closing Seller shall not have been paid by Buyer Regulatory Capital Requirement or the full amount of all Unpaid Receivables Closing Regulatory Cash Requirement, then Buyer shall within five Business Days thereafter pay to Seller in US Dollars any such amounts that have not been paid to Seller.
following the earlier of (viiaa) In the event Buyer and Seller submit any Unresolved Items to the CPA Firm for resolution as provided in Section 2.3(a)(iv) above, the fees and expenses of such CPA Firm will be borne pro rata an agreement or deemed agreement by Buyer and Seller based on the amount of deviation of the determination of the Capital Amount as set forth in the applicable Dispute Notice to (x) Closing Actual Cash and the Final Capital Amount made by the CPA FirmClosing Required Regulatory Cash, such allocation of fees and expenses to be included in the determination made by the CPA Firm.
(viii) Any amounts due under this Section 2.3 shall be paid with interest accruing on a daily basis at the Applicable Rate.and
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