Purchase Price The aggregate purchase price for the Properties (the “Purchase Price”) is EIGHT HUNDRED THIRTY-SEVEN MILLION THREE HUNDRED SIXTY-SIX THOUSAND NINETY ONE AND 00/100 DOLLARS ($837,366,091), which represents the sum of the purchase price allocated to each Property as shown on Schedule 2.1, payable by Buyer as follows. Parcel 20 Seller may also be entitled to the increase in the Purchase Price allocable to its Property pursuant to the terms of Section 15.1(i) below:
(a) Buyer shall, within one (1) Business Day (as defined below) after full execution of this Agreement, deliver to First American Title Insurance Company (in such capacity, the “Escrow Holder”) the amount of **** of the ******** ***** in the form of a letter of credit (as provided below) or by wire transfer of immediately available good funds to an account designated by Escrow Holder (together with any interest earned thereon, the “Initial Deposit”). Provided this Agreement is not terminated by the end of the ***** ******** **** (as defined below), Buyer shall, within one (1) Business Day after the ***** ******** ****, deposit with Escrow Holder an additional amount (together with any interest earned thereon, the “Additional Deposit”) such that the sum of the Initial Deposit and the Additional Deposit shall equal **** ******* **** of the ******** *****. The Additional Deposit shall be in the form of a letter of credit (as provided below) or by wire transfer of immediately available good funds to an account designated by Escrow Holder. As used herein, the term “Deposit” shall mean the Initial Deposit together with the Additional Deposit, from and after the date that the Additional Deposit is required to be made. The Deposit shall be allocated to the Properties as set forth on Schedule 2.1(a). The Deposit shall be non-refundable; provided, however, that the Deposit (or the appropriate allocable portion thereof) shall be refundable to Buyer if Buyer terminates this Agreement in accordance with the provisions of this Agreement which expressly provide for the return of any portion of the Deposit to Buyer upon such termination. At the election of Buyer, the Deposit (or any portion thereof) may be in the form of one or more irrevocable letters of credit issued by a U.S. federally insured commercial bank approved by Sellers for the benefit of Escrow Holder, each of which shall have an initial term of at least one year, the form and substance of which shall be acceptable to Sellers and Escrow Holder. If Buyer and Seller cannot agree upon the issuer of a letter of credit or the form or substance of such letter of credit, the Deposit shall be in cash. If at any time during the term of the Agreement, any letter of credit will expire within thirty (30) days, Buyer shall deliver to Escrow Holder either a replacement letter of credit, or an endorsement to the letter of credit, extending the expiration date of the Letter of Credit for at least one (1) year, or to a date that is thirty (30) days following the scheduled Closing Date, whichever is earlier. If a replacement letter of credit or endorsement is not provided to Escrow Holder as required by the preceding sentence within seven (7) Business Days of the expiration date, Escrow Holder shall draw upon the letter of credit and the proceeds thereof shall be held by Escrow Holder as the Deposit under this Agreement. Escrow Holder shall draw upon and deliver the proceeds of a letter of credit (or applicable portion thereof) to a Seller whenever the terms of this Agreement require the Deposit or a portion thereof to be delivered to such Seller, including following an event of default by Buyer that has not been cured during any requisite cure period, and shall deliver such letter of credit to Buyer whenever the terms of this Agreement require the Deposit to be delivered to Buyer. Each letter of credit shall provide that it may be drawn upon by Escrow Holder upon presentation, to issuer, of the original letter of credit together with a site draft and a written statement duly executed and acknowledged by an authorized representative of Escrow Holder, certifying that the amount drawn thereunder is being drawn upon by Escrow Holder pursuant to the terms and conditions of this Agreement; and
(b) Buyer shall, on or before 11:00 a.m. (Eastern Time) on the Closing Date, deliver to Escrow Holder, by bank wire transfer of immediately available funds to an account designated by Escrow Holder no less than three (3) Business Days prior to Closing, the Purchase Price less the amount of any cash Deposit which is being paid to Seller at Closing. At the Closing, Escrow Holder shall deliver to Sellers the Purchase Price as adjusted to reflect prorations and other adjustments made pursuant to Article VI. Except as otherwise provided in this Agreement, Escrow Holder shall hold all amounts deposited by Buyer under this Section 2.1(b) for the benefit of Buyer until delivered to Sellers at the Closing and Buyer shall be entitled to a credit against the Purchase Price for all interest paid to Sellers that is earned on such amounts from the date of the deposit until the Closing.
(c) The Purchase Price is subject to adjustment pursuant to the terms of the loan assumption provisions set forth on Exhibit AA attached hereto and made a part hereof.
Purchase Price Adjustments (a) By not later than the end of the fourth business day prior to the Closing Date, Seller shall deliver to Purchasers a statement (the "Pre-Closing Statement") setting forth the Fully Diluted Shares, the IP Purchase Price and Seller's good faith estimates of Net Working Capital ("Estimated Net Working Capital"), Cash on Hand ("Estimated Cash on Hand"), Indebtedness ("Estimated Indebtedness") and Transaction Expenses ("Estimated Transaction Expenses") and the resulting calculation of the Estimated Purchase Price, and a schedule (the “Option Consideration Schedule”) setting forth for each Optionholder the number of shares of common stock of the Company subject to vested Options held by such Optionholder immediately prior to the Closing and the dollar amount of such Optionholder's Optionholder Payment Amount and the Option Consideration. The Pre-Closing Statement shall be prepared in accordance with the definitions set forth in this Agreement, including the definition of Net Working Capital, and, where applicable, the Applicable Accounting Principles. Seller shall give Purchasers and their accountants’ reasonable access to review the books, records and work papers (subject to the execution of customary work paper access letters if requested) of the Company Entities used in the preparation of the Pre-Closing Statement. Purchasers and their accountants may make inquiries of Seller and the Company Entities and their accountants regarding the Pre-Closing Statement and Seller and the Company shall, and shall cause the other Company Entities to, use their reasonable best efforts to cause their respective employees and accountants to reasonably cooperate with, and respond to, such inquiries. Seller shall consider in good faith any comments to the Pre-Closing Statement made by Purchasers in good faith in writing and delivered to Seller not later than the end of the second business day prior to the Closing Date. If Estimated Net Working Capital set forth in the Pre-Closing Statement is greater than $13,000,000, then the Estimated Purchase Price, the Optionholder Payment Amounts and the Option Consideration shall be calculated as if Estimated Net Working Capital was equal to $13,000,000.
(b) Within 90 days after the Closing Date, Purchaser1 will deliver to Seller a statement setting forth Purchasers' good faith calculation of Net Working Capital, Cash on Hand, Indebtedness and Transaction Expenses and the resulting Final Purchase Price (the "Preliminary Closing Statement"). The Preliminary Closing Statement shall be prepared in accordance with the definitions set forth in this Agreement, including the definition of Net Working Capital, and, where applicable, the Applicable Accounting Principles. After delivery of the Preliminary Closing Statement, Purchasers shall give Seller and its accountants reasonable access to review the books, records and work papers (subject to the execution of customary work paper access letters if requested) of the Company Entities, Purchasers (solely to the extent used in the preparation of the Preliminary Closing Statement) and their accountants used in the preparation of the Preliminary Closing Statement. Seller and its accountants may make inquiries of the Company Entities, Purchasers (solely to the extent related to the preparation of the Preliminary Closing Statement) and their accountants regarding the Preliminary Closing Statement and Purchasers and the Company shall, and shall cause the other Company Entities to, use their reasonable best efforts to cause their respective employees and accountants to reasonably cooperate with, and respond to, such inquiries. If Seller has any objections to the Preliminary Closing Statement, Seller shall deliver to Purchaser1 a statement setting forth such objections, including setting forth in reasonable detail based on the information that has been made available to Seller by Purchasers pursuant to Seller’s request the particulars of each objection (including for each component of the calculations objected to, the amount of Seller's calculation of such component and reasons for the difference) (an "Objections Statement") within 45 days after Seller's receipt of the Preliminary Closing Statement. Any items contained in the Preliminary Closing Statement not objected to in the Objections Statement will be deemed to have been accepted by Seller. If an Objections Statement is not delivered to Purchaser1 within 45 days after Seller's receipt of the Preliminary Closing Statement, the Preliminary Closing Statement shall be final, binding and non-appealable by the parties hereto. If an Objections Statement is delivered to Purchaser1 within 45 days after Seller's receipt of the Preliminary Closing Statement, Seller and Purchaser1 shall negotiate in good faith to resolve the objections set forth in the Objections Statement and if they do not reach a final resolution of all such objections within 30 days after Seller's delivery of the Objections Statement to Purchaser1, Seller and Purchaser1 shall submit any objections for which final resolution between Seller and Purchaser1 has not been reached in writing ("Disputed Items") to Xxxxx Xxxxxxxx or such other dispute resolution firm mutually acceptable to Seller and Purchaser1 (the "Dispute Resolution Firm"). The Dispute Resolution Firm's determination will be based solely on the definitions of Net Working Capital, Cash on Hand, Indebtedness and Transaction Expenses set forth in this Agreement, including, where applicable, the definition of Applicable Accounting Principles, and the written submissions of Seller and Purchaser1 (i.e., not on the basis of an independent review or investigation). Purchaser1 and Seller shall promptly provide their written submissions regarding the Disputed Items in writing to the Dispute Resolution Firm and to each other. The Dispute Resolution Firm shall be instructed to render its determination with respect to the Disputed Items as soon as reasonably possible (which the parties agree should not be later than 45 days following the date on which the disagreement is referred to the Dispute Resolution Firm), and to send copies of such written determination to Purchaser1 and Seller. No hearing shall be held and no discovery shall be permitted. No party shall engage, directly or indirectly, in ex parte communications with the Dispute Resolution Firm. The Dispute Resolution Firm shall not assign a value to any Disputed Item greater than the greatest value for such item submitted by either party to the Dispute Resolution Firm or less than the smallest value for such item submitted by either party to the Dispute Resolution Firm. The Dispute Resolution Firm may not award the parties in the aggregate more than the amount in dispute. The decision of the Dispute Resolution Firm with respect to all Disputed Items shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Firm shall be paid by Seller, on the one hand, and Purchasers, on the other hand, based upon the percentage which the portion of the Disputed Items not awarded to each party bears to the aggregate amount of Disputed Items. For example, if Seller submits an Objections Statement for $1,000, and if Purchaser1 disputes only $500 of the amount claimed by Seller which the parties cannot mutually resolve, and if the Dispute Resolution Firm ultimately resolves the Disputed Items by awarding Seller $300 of the $500 of Disputed Items, then the costs and expenses of the Dispute Resolution Firm will be paid 60% (i.e. 300/500) by Purchasers and 40% (i.e., 200/500) by Seller.
