Common use of Adjustment Disputes Clause in Contracts

Adjustment Disputes. (a) Within [***] Business Days from the Closing Date, any Purchaser may deliver written notice to the Seller (a “Disagreement Notice”) setting out in reasonable detail (i) any item in respect of (A) the statement delivered in accordance with Section 2.3 or (B) the satisfaction of any condition set forth in Section 3.3(e), (f) or (g) by the Seller, in either case that such Purchaser wishes to dispute (together, the “Disputed Items”), (ii) the reasons for the dispute and (iii) such Purchaser’s proposed adjustment to each Disputed Item. For the avoidance of doubt, any amounts not specifically disputed in the Disagreement Notice shall be deemed final and binding upon the Seller and such Purchaser for the purposes of this Agreement upon the delivery of the Disagreement Notice. (b) If a Purchaser delivers a Disagreement Notice to the Seller within the period referred to in Section 2.4(a), the Seller and such Purchaser (the “Relevant Parties”) shall resolve the Disputed Items as follows: (i) The Disputed Items shall be submitted first to the senior management of each Relevant Party for friendly resolution by negotiation for a period of up to 30 days from the date of the Seller’s receipt of the Disagreement Notice. (ii) If the Relevant Parties fail to agree upon the Disputed Items within the period set forth in Section 2.4(b)(i), either such Party may demand that an internationally recognized accounting firm agreed upon between such Parties (the “Final Auditor”) determine, with binding effect on such Parties, how the unresolved Disputed Items shall be settled based upon the books and records of each Transferring Company and in accordance with J-GAAP. (iii) The Final Auditor shall act as an expert and not as an arbitrator. The Final Auditor’s activities and jurisdiction shall be limited to the Disputed Items. The Final Auditor shall determine any dispute to the extent relevant to resolving the Disputed Items, which may include any issue involving the interpretation of any provision of this Agreement or the Final Auditor’s terms of reference. The Final Auditor’s written decision on the matters shall be final and binding on the Relevant Parties in the absence of manifest error or fraud. (iv) Each Relevant Party shall use its commercially reasonable efforts to cause the Final Auditor to resolve the Disputed Items as promptly as practicable, but in any event within 30 Business Days from the date on which the Final Auditor was appointed. (v) Each Relevant Party shall authorize and permit the Final Auditor to have reasonable access, during normal business hours and upon reasonable notice, to (A) the properties, books, records and other information relating to each Transferring Business (in the case of the Seller, to the extent retained) and (B) the officers and other employees of such Party and its Affiliates, in each case, to the extent reasonably necessary or appropriate in connection with the resolution of the Disputed Items. (c) Each Relevant Party shall bear its own costs in relation to the Final Auditor. The Final Auditor’s fees and any costs incurred in arriving at the determination (including any fees and costs of any advisers appointed by the Final Auditor) shall be borne by each Relevant Party in proportion to the final allocation made by the Final Auditor of the Disputed Items weighted in relation to the claims made by each such Party, such that the prevailing party pays the lesser proportion of such fees and costs. (d) In respect of each Membership Interest, without duplication of any amount paid in accordance with Section 2.4(e), if the amount equal to (x) the Relevant Purchase Price after reflecting the adjustments determined in accordance with Section 2.4(b), less (y) the amount paid by the Relevant Purchaser to the Seller on the Closing Date in accordance with Section 3.4(a)(i), or plus (z) the amount paid by the Seller to the Relevant Purchaser on the Closing Date in accordance with Section 3.4(a)(ii) (in respect of (y) and (z), as the case may be), is: (i) a negative number, the Seller shall, within five Business Days after the final determination of such amount, pay to the Relevant Purchaser such amount in cash by wire transfer of immediately available funds, in Japanese Yen, to the bank account designated in writing by such Purchaser to the Seller; or (ii) a positive number, the Relevant Purchaser shall, within five Business Days after the final determination of such amount, pay to the Seller such amount in cash by wire transfer of immediately available funds, in Japanese Yen, to the bank account designated in writing by the Seller to such Purchaser. (e) In respect of each Membership Interest, without duplication of any amount paid in accordance with Section 2.4(d), (i) if any of the membership interest specified in Section 3.3(e) is less than the “GK Membership Interests” part of the Relevant Required Equity Amount required on the Closing Date, the Seller shall pay such shortfall to the Relevant Purchaser, (ii) if any indebtedness specified in Section 3.3(f) is more than the Relevant Maximum Debt Amount as of the Closing Date, the Seller shall pay 1% of such excess to the Relevant Purchaser and (iii) if the requirements specified in Section 3.3(g) are not satisfied, the Seller shall pay the amount of any Leakage or, if there are tokumei kumiai interests in the relevant Transferring Company, 1% of such Leakage, to the Relevant Purchaser. Any such payment shall be reduced by any adjustment to the Purchase Price agreed by the Seller and the Relevant Purchaser on the Closing Date, and shall otherwise be paid within five Business Days after the final determination of such amount, by wire transfer of immediately available funds, in Japanese Yen, to the bank account designated in writing by the Relevant Purchaser to the Seller. (f) Unless otherwise required by applicable Law, any payment made in accordance with Section 2.4(d) shall be treated as an adjustment to the Relevant Purchase Price for applicable Tax purposes.

Adjustment Disputes. (a) The following provisions of this Section 2.4 shall apply separately in respect of each Relevant Assignment, and each reference to the “Parties” shall be treated as a reference to the Relevant Seller and the Purchaser. (b) Within [***] Business Days from after the Closing Date, any the Purchaser may deliver written notice to the Relevant Seller (a “Disagreement Notice”) setting out in reasonable detail (i) any item in respect of (A) the statement delivered by the Relevant Seller in accordance with Section 2.3 or (B) the satisfaction of any condition set forth in Section 3.3(e), (f) or (g) by the Relevant Seller, in either case that such the Purchaser wishes to dispute (together, the “Disputed Items”), (ii) the reasons for the dispute and (iii) such the Purchaser’s proposed adjustment to each Disputed Item. For the avoidance of doubt, any amounts not specifically disputed in the Disagreement Notice shall be deemed final and binding upon the Seller and such Purchaser Parties for the purposes of this Agreement upon the delivery of the Disagreement Notice. (bc) If a the Purchaser delivers a Disagreement Notice to the Relevant Seller within the period referred to in Section 2.4(a2.4(b), the Seller and such Purchaser (the “Relevant Parties”) Parties shall resolve the Disputed Items as follows: (i) The Disputed Items shall be submitted first to the senior management of each Relevant Party for friendly resolution by negotiation for a period of up to 30 days from the date of the Relevant Seller’s receipt of the Disagreement Notice. (ii) If the Relevant Parties fail to agree upon the Disputed Items within the period set forth in Section 2.4(b)(i2.4(c)(i), either such Party may demand that an internationally recognized accounting firm agreed upon between such the Parties (the “Final Auditor”) determine, with binding effect on such the Parties, how the unresolved Disputed Items shall be settled based upon the books and records of each Transferring the Relevant Project Company and in accordance with J-GAAP. (iii) The Final Auditor shall act as an expert and not as an arbitrator. The Final Auditor’s activities and jurisdiction shall be limited to the Disputed Items. The Final Auditor shall determine any dispute to the extent relevant to resolving the Disputed Items, which may include any issue involving the interpretation of any provision of this Agreement or the Final Auditor’s terms of reference. The Final Auditor’s written decision on the matters shall be final and binding on the Relevant Parties in the absence of manifest error or fraud. (iv) Each Relevant Party shall use its commercially reasonable efforts to cause the Final Auditor to resolve the Disputed Items as promptly as practicable, but in any event within 30 Business Days from the date on which the Final Auditor was appointed. (v) Each Relevant Party shall authorize and permit the Final Auditor to have reasonable access, during normal business hours and upon reasonable notice, to (A) the properties, books, records and other information relating to each Transferring Business the Relevant Project Company (in the case of the Relevant Seller, to the extent retained) and (B) the officers and other employees of such Party and its Affiliates, in each case, to the extent reasonably necessary or appropriate in connection with the resolution of the Disputed Items. (cd) Each Relevant Party shall bear its own costs in relation to the Final Auditor. The Final Auditor’s fees and any costs incurred in arriving at the determination (including any fees and costs of any advisers appointed by the Final Auditor) shall be borne by each Relevant Party in proportion to the final allocation made by the Final Auditor of the Disputed Items weighted in relation to the claims made by each such Party, such that the prevailing party pays the lesser proportion of such fees and costs. (de) In respect of each Membership Interest, without Without duplication of any amount paid in accordance with Section 2.4(e2.4(f), if the amount equal to (x) the Relevant Purchase Price after reflecting the adjustments determined in accordance with Section 2.4(b2.4(c), less (y) the amount paid by the Relevant Purchaser to the Relevant Seller on the Closing Date in accordance with Section 3.4(a)(i), or plus (z) the amount paid by the Relevant Seller to the Relevant Purchaser on the Closing Date in accordance with Section 3.4(a)(ii) (in respect of (y) and (z), as the case may be), is: (i) a negative number, the Relevant Seller shall, within five Business Days after the final determination of such amount, pay to the Relevant Purchaser such amount in cash by wire transfer of immediately available funds, in Japanese Yen, to the bank account designated in writing by such the Purchaser to the Relevant Seller; or (ii) a positive number, the Relevant Purchaser shall, within five Business Days after the final determination of such amount, pay to the Relevant Seller such amount in cash by wire transfer of immediately available funds, in Japanese Yen, to the bank account designated in writing by the Relevant Seller to such the Purchaser. (ef) In respect of each Membership Interest, without Without duplication of any amount paid in accordance with Section 2.4(d2.4(e), (i) if any of the membership interest tokumei kumiai interests in the Relevant Project Company held by the Relevant Seller on the Closing Date specified in Section 3.3(e) is less than the “GK Membership Tokumei Kumiai Interests” part of the Relevant Required Equity Amount required on the Closing Date, the Relevant Seller shall pay such shortfall to the Relevant Purchaser, (ii) if any indebtedness specified in Section 3.3(f) is more than the Relevant Maximum Debt Amount as of the Closing Date, the Relevant Seller shall pay 199% of such excess to the Relevant Purchaser and (iii) if the requirements specified in Section 3.3(g) are not satisfied, the Relevant Seller shall pay the amount 99% of any Leakage or, if there are tokumei kumiai interests in the relevant Transferring Company, 1% of such Leakage, to the Relevant Purchaser. Any such payment shall be reduced by any adjustment to the Relevant Purchase Price agreed by the Relevant Seller and the Relevant Purchaser on the Closing Date, and shall otherwise be paid within five Business Days after the final determination of such amount, by wire transfer of immediately available funds, in Japanese Yen, to the bank account designated in writing by the Relevant Purchaser to the Relevant Seller. (fg) Unless otherwise required by applicable Law, any payment made in accordance with Section 2.4(d2.4(e) shall be treated as an adjustment to the Relevant Purchase Price for applicable Tax purposes.