Common use of Closing Statement Dispute Resolution Clause in Contracts

Closing Statement Dispute Resolution. During the fifteen (15) days immediately following the delivery of any Notice of Objection, the Surviving Corporation and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Objection. During such period, the Surviving Corporation and the Stockholders’ Representative shall each have access to the other party’s working papers, trial balances and similar materials prepared in connection with the other party’s preparation of the Proposed Closing Statement and the Notice of Objection, as the case may be. The matters set forth in any such written resolution shall be final and binding on the parties hereto on the date of such written resolution. At the end of the fifteen day period referred to in this Section 2.7.2, the parties shall mutually engage and submit such dispute to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, Ernst & Young, LLP, or such other accounting firm of national reputation as shall be mutually acceptable to the Surviving Corporation and Stockholders’ Representative (the “Independent Accountants”). The Independent Accountants shall determine and report in writing to the Surviving Corporation and Stockholders’ Representative as to the resolution of all disputed matters submitted to the Independent Accountants and the effect of such determinations on the Proposed Closing Statement within twenty (20) days after such submission or such longer period as the Independent Accountants may reasonably require, and such determinations shall be final, binding and conclusive as to the Surviving Corporation, the Participating Stockholders, Stockholders’ Representative and their respective Affiliates. The statement setting forth such final and binding determination as of the Closing Date is hereinafter referred to as the “Final Closing Statement”. The fees and disbursements of the Independent Accountants shall be payable one-half by the Surviving Corporation, on the one hand, and one-half by reducing the amount of the WC Escrow Funds, on the other hand.

Closing Statement Dispute Resolution. During If Buyer REIT and Seller Holdings are unable to reach such agreement during the fifteen thirty (1530) days immediately following the Seller Holdings’ delivery of any the Notice of ObjectionDisagreement pursuant to Section 2.5b), then such disputes shall be referred to PricewaterhouseCoopers or another firm of independent accountants of internationally recognized standing reasonably satisfactory to Buyer REIT and Seller Holdings (the “Accountant”). Buyer REIT and Seller Holdings shall each enter into a customary engagement letter with the Accountant. Buyer REIT and Seller Holdings shall furnish the Accountant with a statement setting forth the items from the Notice of Disagreement which are still in dispute (the “Accountant Dispute Notice”) and the position, including the specific amount proposed, of each of Buyer REIT and Seller Holdings with respect to each such disputed item. In resolving such dispute, the Surviving Corporation Accountant shall (i) consider only those items or amounts in the Closing Statement as to which Seller Holdings has disagreed in the Notice of Disagreement, (ii) act as an arbitrator and not as an expert (provided that the Stockholders’ Representative determination of the Accountant shall seek be fully enforceable by a court of competent jurisdiction in good accordance with the terms of this Agreement) and (iii) make a final determination based solely on written materials submitted by Buyer REIT and Seller Holdings in accordance with this Agreement (i.e., not on the basis of an independent review). The Accountant shall be instructed by Buyer REIT and Seller Holdings to use its commercially reasonable efforts to deliver to Buyer REIT and Seller Holdings, as promptly as practicable, in any event no more than forty-five (45) days after referral, a report setting forth its determination of the appropriate amount of each of the line items in the Closing Statement as to which there is disagreement as specified in the Accountant Dispute Notice, including a description of the basis for such determination. In the absence of fraud, bad faith or manifest error, such report shall be final and binding upon the parties. With respect to resolve each disputed line item, such determination, if not in writing accordance with the position of either Buyer REIT or Seller Holdings, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by Buyer REIT and Seller Holdings in the Accountant Dispute Notice with respect to such disputed line item. For the avoidance of doubt, the Accountant shall not review any differences which they may have line items or make any determination with respect to any matter specified other than those matters in the Accountant Dispute Notice that are in dispute. Buyer REIT and Seller Holdings shall, and shall cause their respective Representatives to, cooperate and assist in such Notice of Objectionreview conducted by the Accountant, including making available books, records and personnel. During such periodNeither the Buyers, the Surviving Corporation and Sellers, the Stockholders’ Representative Company Entities nor any of their respective Representatives shall each have access to the other party’s working papers, trial balances and similar materials prepared engage in connection any ex parte communications with the other party’s preparation of the Proposed Closing Statement and the Notice of Objection, as the case may be. The matters set forth in any such written resolution shall be final and binding on the parties hereto on the date of such written resolution. At the end of the fifteen day period referred to in this Section 2.7.2, the parties shall mutually engage and submit such dispute to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, Ernst & Young, LLP, or such other accounting firm of national reputation as shall be mutually acceptable to the Surviving Corporation and Stockholders’ Representative (the “Independent Accountants”). The Independent Accountants shall determine and report in writing to the Surviving Corporation and Stockholders’ Representative as to the resolution of all disputed matters submitted to the Independent Accountants and the effect of such determinations on the Proposed Closing Statement within twenty (20) days after such submission or such longer period as the Independent Accountants may reasonably require, and such determinations shall be final, binding and conclusive as to the Surviving Corporation, the Participating Stockholders, Stockholders’ Representative and their respective Affiliates. The statement setting forth such final and binding determination as of the Closing Date is hereinafter referred to as the “Final Closing Statement”Accountant. The fees and disbursements expenses of the Independent Accountants Accountant shall be payable one-half paid by the Surviving CorporationSellers, on the one hand, and one-half by reducing the amount of the WC Escrow FundsBuyers, on the other hand, based upon the percentage that the amount actually contested but not awarded to the Sellers or the Buyers, respectively, bears to the aggregate amount actually contested by Buyer REIT and Seller Holdings.

Closing Statement Dispute Resolution. During If Buyer and the fifteen Sellers’ Representative are unable to reach such agreement during the thirty (1530) days immediately following the Sellers’ Representative’s delivery of any the Notice of ObjectionDisagreement pursuant to Section 2.5(b), then such disputes shall be referred to PricewaterhouseCoopers or another firm of independent accountants of internationally recognized standing reasonably satisfactory to Buyer and the Sellers’ Representative (the “Accountant”). The Sellers’ Representative and Buyer shall each enter into a customary engagement letter with the Accountant. The Sellers’ Representative and Buyer shall furnish the Accountant with a statement setting forth the items from the Notice of Disagreement which are still in dispute (the “Accountant Dispute Notice”) and the position, including the specific amount proposed, of each of the Sellers’ Representative and Buyer with respect to each such disputed item. In resolving such dispute, the Surviving Corporation Accountant shall (i) consider only those items or amounts in the Closing Statement as to which the Sellers’ Representative has disagreed in the Notice of Disagreement, (ii) act as an arbitrator and not as an expert and (iii) make a final determination based solely on written materials submitted by Buyer and the StockholdersSellers’ Representative in accordance with this Agreement (i.e., not on the basis of an independent review). The Accountant shall seek be instructed by Buyer and the Sellers’ Representative to use its commercially reasonable efforts to deliver to Buyer and the Sellers’ Representative, as promptly as practicable, in good any event no more than forty-five (45) days after referral, a report setting forth its determination of the appropriate amount of each of the line items in the Closing Statement as to which there is disagreement as specified in the Accountant Dispute Notice, including a description of the basis for such determination. In the absence of fraud, bad faith or manifest error, such report shall be final and binding upon the parties. With respect to resolve each disputed line item, such determination, if not in writing accordance with the position of either the Sellers’ Representative or Buyer, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by the Sellers’ Representative and Buyer in the Accountant Dispute Notice with respect to such disputed line item. For the avoidance of doubt, the Accountant shall not review any differences which they may have line items or make any determination with respect to any matter specified other than those matters in such the Accountant Dispute Notice of Objection. During such period, the Surviving Corporation and the Stockholders’ Representative shall each have access to the other party’s working papers, trial balances and similar materials prepared that are in connection with the other party’s preparation of the Proposed Closing Statement and the Notice of Objection, as the case may bedispute. The matters set forth in any such written resolution shall be final and binding on the parties hereto on the date of such written resolution. At the end of the fifteen day period referred to in this Section 2.7.2, the parties shall mutually engage and submit such dispute to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, Ernst & Young, LLP, or such other accounting firm of national reputation as shall be mutually acceptable to the Surviving Corporation and Stockholders’ Representative (the “Independent Accountants”). The Independent Accountants shall determine and report in writing to the Surviving Corporation and Stockholders’ Representative as to the resolution of all disputed matters submitted to the Independent Accountants and the effect of such determinations on the Proposed Closing Statement within twenty (20) days after such submission or such longer period as the Independent Accountants may reasonably require, and such determinations shall be final, binding and conclusive as to the Surviving Corporation, the Participating Stockholders, StockholdersSellers’ Representative and Buyer shall, and shall cause their respective AffiliatesRepresentatives to, cooperate and assist in such review conducted by the Accountant, including making available books, records and personnel. The statement setting forth such final and binding determination as Neither Buyer, the Sellers’ Representative, Sellers, the Company nor any of their respective Representatives shall engage in any ex parte communications with the Closing Date is hereinafter referred to as the “Final Closing Statement”Accountant. The fees and disbursements expenses of the Independent Accountants Accountant shall be payable one-half paid by the Surviving CorporationSellers’ Representative on behalf of the Sellers, on the one hand, and one-half by reducing the amount of the WC Escrow FundsBuyer, on the other hand, based upon the percentage that the amount actually contested but not awarded to the Sellers or Buyer, respectively, bears to the aggregate amount actually contested by the Sellers’ Representative and Buyer.

Closing Statement Dispute Resolution. During the fifteen thirty (1530) days day period immediately following the delivery Shareholder Representative’s receipt of any Notice of Objection, the Surviving Corporation Buyer and the Stockholders’ Shareholder Representative shall seek will negotiate in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Objectionall disputed items. During such period, the Surviving Corporation If Buyer and the Stockholders’ Shareholder Representative shall each have access are unable to the other partyresolve all of such disputes within thirty (30) days of Shareholder Representative’s working papers, trial balances and similar materials prepared in connection with the other party’s preparation receipt of the Proposed Closing Statement and the Notice of Objection, the items in dispute may be referred by either such party for determination as the case may be. The matters set forth in any such written resolution shall be final and binding on the parties hereto on the date of such written resolution. At the end of the fifteen day period referred promptly as practicable to in this Section 2.7.2, the parties shall an independent accounting firm mutually engage and submit such dispute to, agreed upon by Buyer and the same shall be finally resolved in accordance with the provisions of this Agreement by, Ernst & Young, LLP, or such other accounting firm of national reputation as shall be mutually acceptable to the Surviving Corporation and Stockholders’ Shareholder Representative (the “Independent AccountantsAccounting Firm”), which shall be jointly engaged by Buyer and the Shareholder Representative pursuant to an engagement letter in customary form which each of Buyer and the Shareholder Representative will execute. The parties will direct the Independent Accounting Firm to prescribe procedures for resolving the disputed items and to make a written determination, with respect to such disputed items only, whether and to what extent, if any, the accompanying calculations of the Working Capital and Net Cash on Hand require adjustment based on the terms and conditions of this Agreement (the “Determination”). The Independent Accountants shall determine Determination will be based solely on presentations with respect to such disputed items by Buyer and report in writing to the Surviving Corporation and Stockholders’ Shareholder Representative as to the resolution of all disputed matters submitted to the Independent Accountants Accounting Firm and not on the Independent Accounting Firm’s independent review; provided, that such presentations will be deemed to include any written reports, work papers, records, accounts or similar materials delivered to the Independent Accounting Firm by Buyer or the Shareholder Representative in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests by the Independent Accounting Firm. In the absence of fraud or manifest error, the Determination will be conclusive and binding upon Buyer, the Shareholder Representative and the effect of such determinations on the Proposed Closing Statement within twenty (20) days after such submission or such longer period as Shareholders. The parties agree that, if the Independent Accountants may reasonably requireAccounting Firm assigns to any item a value greater than the greatest value for such item claimed by either Buyer or the Shareholder Representative (the “Upper Limit”) or less than the smallest value for such item claimed by Buyer or the Shareholder Representative (the “Lower Limit”), and the Determination for such determinations item shall be final, binding and conclusive as adjusted to the Surviving CorporationUpper Limit or the Lower Limit, as applicable. If the Participating Stockholdersvalue assigned by the Independent Accounting Firm to the Working Capital and Net Cash on Hand, Stockholders’ Representative and their respective Affiliates. The statement setting forth such final and binding determination as taken together, is less than ninety-five percent (95%) of the value assigned to such items by Shareholder Representative in the Closing Date is hereinafter referred to as Balance Sheet, then the “Final Closing Statement”. The expenses and fees and disbursements of the Independent Accountants Accounting Firm shall be payable one-half by offset against the Surviving Corporation, on the one hand, and one-half by reducing the aggregate principal amount of the WC Escrow FundsSubordinated Purchase Note, on otherwise such expenses and fees will be borne by the other handBuyer.

Closing Statement Dispute Resolution. During If Buyer and the fifteen Seller Representative are unable to reach such agreement during the sixty (1560) days immediately following the Seller Representative’s delivery of any the Notice of ObjectionDisagreement pursuant to Section 2.6(b), then such disputes shall be referred to Exxxx & Young LLP or another firm of independent accountants of internationally recognized standing reasonably satisfactory to Buyer and the Seller Representative (the “Accountant”). The Seller Representative and Buyer shall each enter into a customary engagement letter with the Accountant. The Seller Representative and Buyer shall furnish the Accountant with a statement setting forth the items from the Notice of Disagreement which are still in dispute (the “Accountant Dispute Notice”) and the position, including the specific amount proposed, of each of the Seller Representative and Buyer with respect to each such disputed item. In resolving such dispute, the Surviving Corporation Accountant shall (i) consider only those items or amounts in the Closing Statement as to which the Seller Representative has disagreed in the Notice of Disagreement, (ii) act as an arbitrator and not as an expert, (iii) apply GAAP based on information known or knowable as of the Closing Date and (iv) base its determination solely on the written submissions made by Buyer and Seller Representative in the Accountant Dispute Notice (and not independent review) and the Stockholders’ terms and provisions of this Agreement and the schedules hereto. From the date of its appointment until the delivery to Buyer and the Seller Representative of its decision, the Accountant shall seek not engage in good any ex parte communication with the Company, Buyer, the Seller Representative or any of their respective Affiliates or representatives (other than in the ordinary course of business and unrelated to this Agreement and the Transactions). The Accountant shall be instructed by Bxxxx and the Sellers to use its commercially reasonable efforts to deliver to Buyer and the Seller Representative, as promptly as practicable, in any event no more than forty-five (45) days after referral, a report setting forth its determination of the appropriate amount of each of the line items in the Closing Statement as to which there is disagreement as specified in the Accountant Dispute Notice. In the absence of fraud, bad faith or manifest error, such report shall be final and binding upon the parties with respect to resolve each such disputed line item. With respect to each disputed line item, such determination, if not in writing accordance with the position of either the Seller Representative or Buyer, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by the Seller Representative and Buyer in the Accountant Dispute Notice with respect to such disputed line item. For the avoidance of doubt, the Accountant shall not review any differences which they may have line items or make any determination with respect to any matter specified other than those matters in the Accountant Dispute Notice that are in dispute. The Seller Representative and Buyer shall, and shall cause their respective Representatives to, cooperate and assist in such Notice of Objection. During such periodreview conducted by the Accountant, the Surviving Corporation including making available books, records and the Stockholders’ Representative shall each have access to the other party’s working papers, trial balances and similar materials prepared in connection with the other party’s preparation of the Proposed Closing Statement and the Notice of Objection, as the case may be. The matters set forth in any such written resolution shall be final and binding on the parties hereto on the date of such written resolution. At the end of the fifteen day period referred to in this Section 2.7.2, the parties shall mutually engage and submit such dispute to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, Ernst & Young, LLP, or such other accounting firm of national reputation as shall be mutually acceptable to the Surviving Corporation and Stockholders’ Representative (the “Independent Accountants”). The Independent Accountants shall determine and report in writing to the Surviving Corporation and Stockholders’ Representative as to the resolution of all disputed matters submitted to the Independent Accountants and the effect of such determinations on the Proposed Closing Statement within twenty (20) days after such submission or such longer period as the Independent Accountants may reasonably require, and such determinations shall be final, binding and conclusive as to the Surviving Corporation, the Participating Stockholders, Stockholders’ Representative and their respective Affiliates. The statement setting forth such final and binding determination as of the Closing Date is hereinafter referred to as the “Final Closing Statement”personnel. The fees and disbursements expenses of the Independent Accountants Accountant shall be payable one-half paid by the Surviving CorporationSeller Representative, on the one hand, and one-half by reducing the amount of the WC Escrow FundsBxxxx, on the other hand, based upon the percentage that the amount actually contested but not awarded to the Seller Representative or Buyer, respectively, bears to the aggregate amount actually contested by the Seller Representative and Buyer.