Completion Adjustments. 8.1 Where any sums are taken into account in: (a) the Working Capital Adjustment; (b) the Billed Invoice Adjustment; (c) the Petroleum Sales Adjustment; (d) the NPR Adjustment; (e) the Interest Adjustment; (f) the Taxation Adjustment; (together, the Adjustments (with Adjustment meaning any or all of the above (as the context may require)), or are payable by the Buyer to ▇▇▇▇-▇▇▇▇▇ or by ▇▇▇▇-▇▇▇▇▇ to the Buyer pursuant to this clause 8, clause 10, Schedule 5 or Schedule 8 (together the Adjustment Clauses) or pursuant to a ▇▇▇▇-▇▇▇▇▇ Warranty Claim under clause 5 or a Buyer Warranty Claim under clause 6 or a payment under clause 12.4, the same shall operate by way of increases or decreases, as the case may be, in the Base Consideration. 8.2 The following principles shall apply in respect of the Adjustments and the Base Consideration: (a) the Base Consideration shall be adjusted by the Adjustments; (b) no item taken into account in calculating any one Adjustment or other increases or decreases as the case may be under the Adjustment Clauses or clause 5 or 6 or 12.4 shall be taken into account in calculating any of the other Adjustments so as to result in a Party making or receiving payment twice in respect thereof nor will any Party be entitled under clause 12 to reimbursement of any payment received from a third party to the extent such payment has been taken into account (to the benefit of that Party) in calculating any of the Adjustments; (c) no adjustment to the Base Consideration shall be made in respect of any matters to which clauses 12.6 and 12.8 apply. (a) ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement specifying its best estimate of the sum of all the Adjustments as at the Completion Date (the Interim Net Adjustment Amount) which if positive shall increase the Base Consideration payable by the Buyer at Completion and if negative shall reduce the Base Consideration payable by the Buyer at Completion. (b) Such statement (the Interim Completion Statement) shall be provided no later than two (2) Business Days prior to Completion, in the format set out in Schedule 5. 8.4 Within sixty (60) days after Completion, and without prejudice to the provisions of clause 12, ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement (in the format set out in Schedule 5) giving its calculation of the final amounts of each of: (a) the Adjustments save in relation to the Taxation Adjustment for which a reasonable estimate shall be calculated; (b) the Net Adjustment Amount; and (c) the balance payable by ▇▇▇▇-▇▇▇▇▇ or the Buyer after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion, (the Final Completion Statement). The Buyer shall notify ▇▇▇▇-▇▇▇▇▇ in writing (such notification being an Objection Notice) within fifteen (15) Business Days after receipt whether or not it accepts that the Final Completion Statement has been prepared in accordance with the relevant provisions of this Agreement. Any notice indicating that the Buyer does not so accept the Final Completion Statement shall to the extent practicable and reasonable: (a) set out in detail the Buyer’s reasons for such non-acceptance; and (b) specify the adjustments which, in the Buyer’s opinion, should be made to the Final Completion Statement in order to comply with the provisions of this Agreement; and (c) set out the specific items that are in dispute accompanied by the Buyer’s calculation at its best estimate of each of the items that are in dispute (the Disputed Amounts). Except for Disputed Amounts, the Buyer shall be deemed to have accepted the Final Completion Statement in full. 8.5 If the Buyer serves an Objection Notice in accordance with clause 8.4 above, then the Buyer and ▇▇▇▇-▇▇▇▇▇ shall use all reasonable endeavours: (a) to meet and discuss the objections of the Buyer; and (b) to reach agreement upon the adjustments (if any) required to be made to the Final Completion Statement, within a period of ten (10) Business Days after receipt by ▇▇▇▇-▇▇▇▇▇ of the Objection Notice. During such ten (10) Business Days period ▇▇▇▇-▇▇▇▇▇ and its representatives shall be permitted to review the working papers of the Buyer and its representatives relating to the Objection Notice and the basis therefor. 8.6 If the Buyer notifies ▇▇▇▇-▇▇▇▇▇ in writing that it is satisfied with the Final Completion Statement (either as originally submitted or after adjustments agreed between ▇▇▇▇-▇▇▇▇▇ and the Buyer pursuant to clause 8.5) or if the Buyer fails to give an Objection Notice within the fifteen (15) Business Days period referred to in clause 8.4, then the payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) due in accordance with the Final Completion Statement shall be made within three (3) Business Days of such written notification or such failure to give an Objection Notice (as the case may be), together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate. 8.7 If the Parties cannot reach agreement as specified in clause 8.6 within the time limit provided in that clause, the Disputed Amounts may be referred by any Party for determination by an independent chartered accountant nominated by the Parties or, in the absence of agreement between the Parties within five (5) Business Days of a Party notifying the other that it proposes to refer the dispute to an expert, by the President of the Institute of Chartered Accountants in England and Wales (the Nominated Independent Accountant). The Parties shall instruct the Nominated Independent Accountant to render its decision within sixty (60) days of its selection. The Nominated Independent Accountant shall be afforded such access to books, records, accounts and documents in the possession of the Parties as he may reasonably request, and he shall act as expert not as arbitrator. The said accountant’s determination shall, in the absence of fraud or manifest error, be final and binding on the Parties, his fees and disbursements shall be borne by ▇▇▇▇-▇▇▇▇▇ as to one half and the Buyer as to the other half and each party shall bear its own costs in respect of such references. Payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) in accordance with the Nominated Independent Accountant’s determination of the Disputed Amounts and in accordance with the Final Completion Statement in respect of all other items shall be made within three (3) Business Days of the determination of the Nominated Independent Accountant, together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate. 8.8 ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with copies of all Operator’s reports, billing statements and correspondence and any and all other relevant documentation in its possession or under its control reasonably necessary to support the statements referred to in clauses 8.3 and 8.4 simultaneously with the provision of such statements. The Parties shall liaise on the compilation and agreement of the said statements. 8.9 To enable ▇▇▇▇-▇▇▇▇▇ to meet its obligations under this clause 8, the Buyer shall provide to ▇▇▇▇-▇▇▇▇▇ and to ▇▇▇▇-▇▇▇▇▇’▇ accountants full access to the books and records, employees and premises of the Buyer. The Buyer shall fully co-operate with ▇▇▇▇-▇▇▇▇▇ and shall permit ▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇▇’▇ accountants to take copies (including electronic copies) of the relevant books and records and shall provide all assistance reasonably requested by ▇▇▇▇-▇▇▇▇▇ to facilitate the preparation of the Final Completion Statement. The Buyer hereby agrees not to take any action which would impede or delay the preparation of the Final Completion Statement or the determination of the Total Consideration in the manner and using the methods required by this Agreement. The provisions of this clause 8.9 shall apply mutatis mutandis to ▇▇▇▇-▇▇▇▇▇ in relation to the obligations of the Buyer under this clause 8. 8.10 All of the calculations to be made pursuant to this clause 8 shall be made on an Accrual Basis of Accounting and in accordance with accounting principles generally accepted in the oil and gas industry in the United Kingdom at the date of Completion unless otherwise stated in this Agreement and such principles shall be consistently applied for the purposes of any and all disputes between the Parties. 8.11 Notwithstanding any contrary provision in this Agreement the Parties agree to cooperate in order to re-calculate the estimated Taxation Adjustment (referred to in clause 8.4) prior to 30 June 2006 in accordance with the provisions of Schedule 8; provided that this re-calculation shall not have any impact on the Final Completion Statement or the Total Consideration and the provisions of clause 8.7 shall apply mutatis mutandis in the event of failure to agree such Taxation Adjustment by 30 June 2006. 8.12 In the event of late payment, clause 13 will apply.
Appears in 3 contracts
Sources: Agreement for the Sale and Purchase of Assets (Kerr McGee Corp /De), Agreement for the Sale and Purchase of Assets (Kerr McGee Corp /De), Agreement for the Sale and Purchase of Interest in Ukcs Licence 103 Area W (Kerr McGee Corp /De)
Completion Adjustments. 8.1 9.1 Where any sums are taken into account in:
(a) the Working Capital Adjustment;
(b) the Billed Invoice Distribution Adjustment;
(c) the Petroleum Sales Contribution Adjustment;
(d) the NPR Asset Sale Adjustment;; and
(e) the Interest Adjustment;
(f) the Taxation Adjustment; , (together, the Adjustments (with Adjustment meaning any or all of the above (as the context may require)), or are payable by the Buyer to ▇K▇▇▇-▇▇▇▇▇ or by ▇K▇▇▇-▇▇▇▇▇ to the Buyer pursuant to this clause 8, clause 109, Schedule 5 6 or Schedule 8 (together the Adjustment Clauses) or pursuant to a ▇K▇▇▇-▇▇▇▇▇ Warranty Claim under clause 5 7 or a Buyer Warranty Claim under clause 6 8, or a payment under are payable by the Buyer pursuant to clause 12.411 or by K▇▇▇-▇▇▇▇▇ pursuant to clause 12, the same shall operate by way of increases or decreases, as the case may be, in the Base Consideration.
8.2 9.2 The following principles shall apply in respect of the Adjustments and the Base Consideration:
(a) the Base Consideration shall be adjusted by the Adjustments;
(b) no item taken into account in calculating any one Adjustment or other increases or decreases as the case may be under the Adjustment Clauses or clause 5 clauses 7, 8, 11 or 6 or 12.4 12 shall be taken into account in calculating any of the other Adjustments so as to result in a Party making or receiving payment twice in respect thereof nor will any Party be entitled under clause 12 to reimbursement of any payment received from a third party to the extent such payment has been taken into account (to the benefit of that Party) in calculating any of the Adjustments;
(c) no adjustment to the Base Consideration shall be made in respect of any matters to which clauses 12.6 and 12.8 applythereof.
(a) ▇K▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement specifying (i) its best estimate of the sum of all the Adjustments as at the Completion Date (the Interim Net Adjustment Amount) which if positive shall increase the Base Consideration payable by the Buyer at Completion and if negative shall reduce the Base Consideration payable by the Buyer at Completion; and (ii) its best estimate of each Completion Inter-Company Payable and each Completion Inter-Company Receivable.
(b) Such statement (the Interim Completion Statement) shall be provided no later than two (2) Business Days prior to Completion, Completion in the format set out in Schedule 56 (Completion Adjustments).
8.4 Within sixty (60) days after Completion, and without prejudice to the provisions of clause 12, ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement (in the format set out in Schedule 5) giving its calculation of the final amounts of each of:
(a) the Adjustments save in relation to the Taxation Adjustment for which a reasonable estimate shall be calculated;
(b) the Net Adjustment Amount; and
(c) the balance payable by ▇▇▇▇-▇▇▇▇▇ or the Buyer after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion, (the Final Completion Statement). The Buyer shall notify ▇▇▇▇-▇▇▇▇▇ in writing (such notification being an Objection Notice) within fifteen (15) Business Days after receipt whether or not it accepts that the Final Completion Statement has been prepared in accordance with the relevant provisions of this Agreement. Any notice indicating that the Buyer does not so accept the Final Completion Statement shall to the extent practicable and reasonable:
(a) set out in detail the Buyer’s reasons for such non-acceptance; and
(b) specify the adjustments which, in the Buyer’s opinion, should be made to the Final Completion Statement in order to comply with the provisions of this Agreement; and
(c) set out the specific items that are in dispute accompanied by the Buyer’s calculation at its best estimate of each of the items that are in dispute (the Disputed Amounts). Except for Disputed Amounts, the Buyer shall be deemed to have accepted the Final Completion Statement in full.
8.5 If the Buyer serves an Objection Notice in accordance with clause 8.4 above, then the Buyer and ▇▇▇▇-▇▇▇▇▇ shall use all reasonable endeavours: (a) to meet and discuss the objections of the Buyer; and (b) to reach agreement upon the adjustments (if any) required to be made to the Final Completion Statement, within a period of ten (10) Business Days after receipt by ▇▇▇▇-▇▇▇▇▇ of the Objection Notice. During such ten (10) Business Days period ▇▇▇▇-▇▇▇▇▇ and its representatives shall be permitted to review the working papers of the Buyer and its representatives relating to the Objection Notice and the basis therefor.
8.6 If the Buyer notifies ▇▇▇▇-▇▇▇▇▇ in writing that it is satisfied with the Final Completion Statement (either as originally submitted or after adjustments agreed between ▇▇▇▇-▇▇▇▇▇ and the Buyer pursuant to clause 8.5) or if the Buyer fails to give an Objection Notice within the fifteen (15) Business Days period referred to in clause 8.4, then the payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) due in accordance with the Final Completion Statement shall be made within three (3) Business Days of such written notification or such failure to give an Objection Notice (as the case may be), together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.7 If the Parties cannot reach agreement as specified in clause 8.6 within the time limit provided in that clause, the Disputed Amounts may be referred by any Party for determination by an independent chartered accountant nominated by the Parties or, in the absence of agreement between the Parties within five (5) Business Days of a Party notifying the other that it proposes to refer the dispute to an expert, by the President of the Institute of Chartered Accountants in England and Wales (the Nominated Independent Accountant). The Parties shall instruct the Nominated Independent Accountant to render its decision within sixty (60) days of its selection. The Nominated Independent Accountant shall be afforded such access to books, records, accounts and documents in the possession of the Parties as he may reasonably request, and he shall act as expert not as arbitrator. The said accountant’s determination shall, in the absence of fraud or manifest error, be final and binding on the Parties, his fees and disbursements shall be borne by ▇▇▇▇-▇▇▇▇▇ as to one half and the Buyer as to the other half and each party shall bear its own costs in respect of such references. Payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) in accordance with the Nominated Independent Accountant’s determination of the Disputed Amounts and in accordance with the Final Completion Statement in respect of all other items shall be made within three (3) Business Days of the determination of the Nominated Independent Accountant, together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.8 ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with copies of all Operator’s reports, billing statements and correspondence and any and all other relevant documentation in its possession or under its control reasonably necessary to support the statements referred to in clauses 8.3 and 8.4 simultaneously with the provision of such statements. The Parties shall liaise on the compilation and agreement of the said statements.
8.9 To enable ▇▇▇▇-▇▇▇▇▇ to meet its obligations under this clause 8, the Buyer shall provide to ▇▇▇▇-▇▇▇▇▇ and to ▇▇▇▇-▇▇▇▇▇’▇ accountants full access to the books and records, employees and premises of the Buyer. The Buyer shall fully co-operate with ▇▇▇▇-▇▇▇▇▇ and shall permit ▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇▇’▇ accountants to take copies (including electronic copies) of the relevant books and records and shall provide all assistance reasonably requested by ▇▇▇▇-▇▇▇▇▇ to facilitate the preparation of the Final Completion Statement. The Buyer hereby agrees not to take any action which would impede or delay the preparation of the Final Completion Statement or the determination of the Total Consideration in the manner and using the methods required by this Agreement. The provisions of this clause 8.9 shall apply mutatis mutandis to ▇▇▇▇-▇▇▇▇▇ in relation to the obligations of the Buyer under this clause 8.
8.10 All of the calculations to be made pursuant to this clause 8 shall be made on an Accrual Basis of Accounting and in accordance with accounting principles generally accepted in the oil and gas industry in the United Kingdom at the date of Completion unless otherwise stated in this Agreement and such principles shall be consistently applied for the purposes of any and all disputes between the Parties.
8.11 Notwithstanding any contrary provision in this Agreement the Parties agree to cooperate in order to re-calculate the estimated Taxation Adjustment (referred to in clause 8.4) prior to 30 June 2006 in accordance with the provisions of Schedule 8; provided that this re-calculation shall not have any impact on the Final Completion Statement or the Total Consideration and the provisions of clause 8.7 shall apply mutatis mutandis in the event of failure to agree such Taxation Adjustment by 30 June 2006.
8.12 In the event of late payment, clause 13 will apply.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Kerr McGee Corp /De)
Completion Adjustments. 8.1 9.1 Where any sums are taken into account in:
(a) the Working Capital Adjustment;
(b) the Billed Invoice Distribution Adjustment;
(c) the Petroleum Sales Contribution Adjustment;
(d) the NPR Inter-Company Notes Receivables Adjustment;; and
(e) the Interest Adjustment;
(f) the Taxation Adjustment; , (together, the Adjustments Adjustments) (with Adjustment meaning any or all of the above (as the context may require)), or are payable by the Buyer to ▇▇▇▇-▇▇▇▇▇ or by ▇▇▇▇-▇▇▇▇▇ to the Buyer pursuant to this clause 8, clause 109, Schedule 5 6 or Schedule 8 (together the Adjustment Clauses) or pursuant to a ▇▇▇▇-▇▇▇▇▇ Warranty Claim under clause 5 7 or a Buyer Warranty Claim under clause 6 or a payment under clause 12.48, the same shall operate by way of increases or decreases, as the case may be, in the Base Consideration.
8.2 9.2 The following principles shall apply in respect of the Adjustments and the Base Consideration:
(a) the Base Consideration shall be adjusted by the Adjustments;
(b) no item taken into account in calculating any one Adjustment or other increases or decreases as the case may be under the Adjustment Clauses or clause 5 7 or 6 or 12.4 8 shall be taken into account in calculating any of the other Adjustments so as to result in a Party making or receiving payment twice in respect thereof nor will any Party be entitled under clause 12 to reimbursement of any payment received from a third party to the extent such payment has been taken into account (to the benefit of that Party) in calculating any of the Adjustmentsthereof;
(c) no adjustment to the Base Consideration shall be made in respect of any matters to which clauses 12.6 and 12.8 applyclause 11 applies.
(a) ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement specifying (i) its best estimate of the sum of all the Adjustments as at the Completion Date (the Interim Net Adjustment Amount) which if positive shall increase the Base Consideration payable by the Buyer at Completion and if negative shall reduce the Base Consideration payable by the Buyer at Completion; (ii) its best estimate of each Completion Inter-Company Payable and each Completion Inter-Company Receivable; and (iii) the amount, if any, of the Tax Withheld Amount pursuant to Part B, Schedule 7 (Tax Matters) provided always that the Buyer shall be able to withhold such amount in respect of the Tax Withheld Amount as it reasonably thinks is due and payable.
(b) Such statement (the Interim Completion Statement) shall be provided no later than two (2) Business Days prior to Completion, Completion in the format set out in Schedule 56 (Completion Adjustments).
8.4 9.4 Within sixty (60) days after Completion, and without prejudice to the provisions of clause 12, ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement (in the format set out in Schedule 56 (Completion Adjustments)) giving its calculation of the final amounts of each of:
(a) the Adjustments save in relation to the Taxation Adjustment for which a reasonable estimate shall be calculatedAdjustments;
(b) the Net Adjustment Amount; and;
(c) the balance payable by ▇▇▇▇-▇▇▇▇▇ or the Buyer after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion, (the Final Completion Statement). The Buyer shall notify ▇▇▇▇-▇▇▇▇▇ in writing (such notification being an Objection Notice) within fifteen (15) Business Days after receipt whether or not it accepts that the Final Completion Statement has been prepared in accordance with the relevant provisions of this Agreement. Any notice indicating that the Buyer does not so accept the Final Completion Statement shall to the extent practicable and reasonable:
(a) set out in detail the Buyer’s reasons for such non-acceptance; and
(bd) specify the adjustments which, in the Buyer’s opinion, should be made to the Final Completion Statement in order to comply with the provisions of this Agreement; and
(c) set out the specific items that are in dispute accompanied by the Buyer’s calculation at its best estimate of each of the items that are in dispute (the Disputed Amounts). Except for Disputed Amounts, the Buyer shall be deemed to have accepted the Final Completion Statement in full.
8.5 If the Buyer serves an Objection Notice in accordance with clause 8.4 above, then the Buyer and ▇▇▇▇-▇▇▇▇▇ shall use all reasonable endeavours: (a) to meet and discuss the objections of the Buyer; and (b) to reach agreement upon the adjustments (if any) required to be made to the Final Completion Statement, within a period of ten (10) Business Days after receipt by ▇▇▇▇-▇▇▇▇▇ of the Objection Notice. During such ten (10) Business Days period ▇▇▇▇-▇▇▇▇▇ and its representatives shall be permitted to review the working papers of the Buyer and its representatives relating to the Objection Notice and the basis therefor.
8.6 If the Buyer notifies ▇▇▇▇-▇▇▇▇▇ in writing that it is satisfied with the Final Completion Statement (either as originally submitted or after adjustments agreed between ▇▇▇▇-▇▇▇▇▇ and the Buyer pursuant to clause 8.5) or if the Buyer fails to give an Objection Notice within the fifteen (15) Business Days period referred to in clause 8.4, then the payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) due in accordance with the Final Completion Statement shall be made within three (3) Business Days of such written notification or such failure to give an Objection Notice (as the case may be), together with simple interest on such amount from and including the Completion Date up to Inter-Company Payables and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest RateCompletion Inter-Company Receivables.
8.7 If the Parties cannot reach agreement as specified in clause 8.6 within the time limit provided in that clause, the Disputed Amounts may be referred by any Party for determination by an independent chartered accountant nominated by the Parties or, in the absence of agreement between the Parties within five (5) Business Days of a Party notifying the other that it proposes to refer the dispute to an expert, by the President of the Institute of Chartered Accountants in England and Wales (the Nominated Independent Accountant). The Parties shall instruct the Nominated Independent Accountant to render its decision within sixty (60) days of its selection. The Nominated Independent Accountant shall be afforded such access to books, records, accounts and documents in the possession of the Parties as he may reasonably request, and he shall act as expert not as arbitrator. The said accountant’s determination shall, in the absence of fraud or manifest error, be final and binding on the Parties, his fees and disbursements shall be borne by ▇▇▇▇-▇▇▇▇▇ as to one half and the Buyer as to the other half and each party shall bear its own costs in respect of such references. Payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) in accordance with the Nominated Independent Accountant’s determination of the Disputed Amounts and in accordance with the Final Completion Statement in respect of all other items shall be made within three (3) Business Days of the determination of the Nominated Independent Accountant, together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.8 ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with copies of all Operator’s reports, billing statements and correspondence and any and all other relevant documentation in its possession or under its control reasonably necessary to support the statements referred to in clauses 8.3 and 8.4 simultaneously with the provision of such statements. The Parties shall liaise on the compilation and agreement of the said statements.
8.9 To enable ▇▇▇▇-▇▇▇▇▇ to meet its obligations under this clause 8, the Buyer shall provide to ▇▇▇▇-▇▇▇▇▇ and to ▇▇▇▇-▇▇▇▇▇’▇ accountants full access to the books and records, employees and premises of the Buyer. The Buyer shall fully co-operate with ▇▇▇▇-▇▇▇▇▇ and shall permit ▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇▇’▇ accountants to take copies (including electronic copies) of the relevant books and records and shall provide all assistance reasonably requested by ▇▇▇▇-▇▇▇▇▇ to facilitate the preparation of the Final Completion Statement. The Buyer hereby agrees not to take any action which would impede or delay the preparation of the Final Completion Statement or the determination of the Total Consideration in the manner and using the methods required by this Agreement. The provisions of this clause 8.9 shall apply mutatis mutandis to ▇▇▇▇-▇▇▇▇▇ in relation to the obligations of the Buyer under this clause 8.
8.10 All of the calculations to be made pursuant to this clause 8 shall be made on an Accrual Basis of Accounting and in accordance with accounting principles generally accepted in the oil and gas industry in the United Kingdom at the date of Completion unless otherwise stated in this Agreement and such principles shall be consistently applied for the purposes of any and all disputes between the Parties.
8.11 Notwithstanding any contrary provision in this Agreement the Parties agree to cooperate in order to re-calculate the estimated Taxation Adjustment (referred to in clause 8.4) prior to 30 June 2006 in accordance with the provisions of Schedule 8; provided that this re-calculation shall not have any impact on the Final Completion Statement or the Total Consideration and the provisions of clause 8.7 shall apply mutatis mutandis in the event of failure to agree such Taxation Adjustment by 30 June 2006.
8.12 In the event of late payment, clause 13 will apply.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Kerr McGee Corp /De)
Completion Adjustments. 8.1 Where any sums are taken into account in:
(a) the Working Capital Adjustment;
(b) the Billed Invoice Adjustment;
(c) the Petroleum Sales Adjustment;
(d) the NPR Adjustment;
(e) the Interest Adjustment;
(f) the Taxation Adjustment; (together, the Adjustments (with Adjustment meaning any or all of the above (as the context may require)), or are payable by the Buyer to ▇▇▇▇-▇▇▇▇▇ or by ▇▇▇▇-▇▇▇▇▇ to the Buyer pursuant to this clause 8, clause 10, Schedule 5 or Schedule 8 (together the Adjustment Clauses) or pursuant to a ▇▇▇▇-▇▇▇▇▇ Warranty Claim under clause 5 or a Buyer Warranty Claim under clause 6 or a payment under clause 12.4, the same shall operate by way of increases or decreases, as the case may be, in the Base Consideration.
8.2 The following principles shall apply in respect of the Adjustments and the Base Consideration:
(a) the Base Consideration shall be adjusted by the Adjustments;
(b) no item taken into account in calculating any one Adjustment or other increases or decreases as the case may be under the Adjustment Clauses or clause 5 or 6 or 12.4 shall be taken into account in calculating any of the other Adjustments so as to result in a Party making or receiving payment twice in respect thereof nor will any Party be entitled under clause 12 to reimbursement of any payment received from a third party to the extent such payment has been taken into account (to the benefit of that Party) in calculating any of the Adjustments;
(c) no adjustment to the Base Consideration shall be made in respect of any matters to which clauses 12.6 and 12.8 apply.
8.3 (a) ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement specifying its best estimate of the sum of all the Adjustments as at the Completion Date (the Interim Net Adjustment Amount) which if positive shall increase the Base Consideration payable by the Buyer at Completion and if negative shall reduce the Base Consideration payable by the Buyer at Completion.
(b) Such statement (the Interim Completion Statement) shall be provided no later than two (2) Business Days prior to Completion, in the format set out in Schedule 5.
8.4 Within sixty (60) days after Completion, and without prejudice to the provisions of clause 12, ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement (in the format set out in Schedule 5) giving its calculation of the final amounts of each of:
(a) the Adjustments save in relation to the Taxation Adjustment for which a reasonable estimate shall be calculated;
(b) the Net Adjustment Amount; and
(c) the balance payable by ▇▇▇▇-▇▇▇▇▇ or the Buyer after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion, (the Final Completion Statement). The Buyer shall notify ▇▇▇▇-▇▇▇▇▇ in writing (such notification being an Objection Notice) within fifteen (15) Business Days after receipt whether or not it accepts that the Final Completion Statement has been prepared in accordance with the relevant provisions of this Agreement. Any notice indicating that the Buyer does not so accept the Final Completion Statement shall to the extent practicable and reasonable:
(a) set out in detail the Buyer’s reasons for such non-acceptance; and
(b) specify the adjustments which, in the Buyer’s opinion, should be made to the Final Completion Statement in order to comply with the provisions of this Agreement; and
(c) set out the specific items that are in dispute accompanied by the Buyer’s calculation at its best estimate of each of the items that are in dispute (the Disputed Amounts). Except for Disputed Amounts, the Buyer shall be deemed to have accepted the Final Completion Statement in full.
8.5 If the Buyer serves an Objection Notice in accordance with clause 8.4 above, then the Buyer and ▇▇▇▇-▇▇▇▇▇ shall use all reasonable endeavours: (a) to meet and discuss the objections of the Buyer; and (b) to reach agreement upon the adjustments (if any) required to be made to the Final Completion Statement, within a period of ten (10) Business Days after receipt by ▇▇▇▇-▇▇▇▇▇ of the Objection Notice. During such ten (10) Business Days period ▇▇▇▇-▇▇▇▇▇ and its representatives shall be permitted to review the working papers of the Buyer and its representatives relating to the Objection Notice and the basis therefor.
8.6 If the Buyer notifies ▇▇▇▇-▇▇▇▇▇ in writing that it is satisfied with the Final Completion Statement (either as originally submitted or after adjustments agreed between ▇▇▇▇-▇▇▇▇▇ and the Buyer pursuant to clause 8.5) or if the Buyer fails to give an Objection Notice within the fifteen (15) Business Days period referred to in clause 8.4, then the payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) due in accordance with the Final Completion Statement shall be made within three (3) Business Days of such written notification or such failure to give an Objection Notice (as the case may be), together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.7 If the Parties cannot reach agreement as specified in clause 8.6 within the time limit provided in that clause, the Disputed Amounts may be referred by any Party for determination by an independent chartered accountant nominated by the Parties or, in the absence of agreement between the Parties within five (5) Business Days of a Party notifying the other that it proposes to refer the dispute to an expert, by the President of the Institute of Chartered Accountants in England and Wales (the Nominated Independent Accountant). The Parties shall instruct the Nominated Independent Accountant to render its decision within sixty (60) days of its selection. The Nominated Independent Accountant shall be afforded such access to books, records, accounts and documents in the possession of the Parties as he may reasonably request, and he shall act as expert not as arbitrator. The said accountant’s determination shall, in the absence of fraud or manifest error, be final and binding on the Parties, his fees and disbursements shall be borne by ▇▇▇▇-▇▇▇▇▇ as to one half and the Buyer as to the other half and each party shall bear its own costs in respect of such references. Payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) in accordance with the Nominated Independent Accountant’s determination of the Disputed Amounts and in accordance with the Final Completion Statement in respect of all other items shall be made within three (3) Business Days of the determination of the Nominated Independent Accountant, together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.8 ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with copies of all Operator’s reports, billing statements and correspondence and any and all other relevant documentation in its possession or under its control reasonably necessary to support the statements referred to in clauses 8.3 and 8.4 simultaneously with the provision of such statements. The Parties shall liaise on the compilation and agreement of the said statements.
8.9 To enable ▇▇▇▇-▇▇▇▇▇ to meet its obligations under this clause 8, the Buyer shall provide to ▇▇▇▇-▇▇▇▇▇ and to ▇▇▇▇-▇▇▇▇▇’▇ accountants full access to the books and records, employees and premises of the Buyer. The Buyer shall fully co-operate with ▇▇▇▇-▇▇▇▇▇ and shall permit ▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇▇’▇ accountants to take copies (including electronic copies) of the relevant books and records and shall provide all assistance reasonably requested by ▇▇▇▇-▇▇▇▇▇ to facilitate the preparation of the Final Completion Statement. The Buyer hereby agrees not to take any action which would impede or delay the preparation of the Final Completion Statement or the determination of the Total Consideration in the manner and using the methods required by this Agreement. The provisions of this clause 8.9 shall apply mutatis mutandis to ▇▇▇▇-▇▇▇▇▇ in relation to the obligations of the Buyer under this clause 8.
8.10 All of the calculations to be made pursuant to this clause 8 shall be made on an Accrual Basis of Accounting and in accordance with accounting principles generally accepted in the oil and gas industry in the United Kingdom at the date of Completion unless otherwise stated in this Agreement and such principles shall be consistently applied for the purposes of any and all disputes between the Parties.
8.11 Notwithstanding any contrary provision in this Agreement the Parties agree to cooperate in order to re-calculate the estimated Taxation Adjustment (referred to in clause 8.4) prior to 30 June 2006 in accordance with the provisions of Schedule 8; provided that this re-calculation shall not have any impact on the Final Completion Statement or the Total Consideration and the provisions of clause 8.7 shall apply mutatis mutandis in the event of failure to agree such Taxation Adjustment by 30 June 2006.
8.12 In the event of late payment, clause 13 will apply.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Assets (Kerr McGee Corp /De)
Completion Adjustments. 8.1 Where any sums are taken into account in:
(a) the Working Capital Adjustment;
(b) the Billed Invoice Adjustment;
(c) the Petroleum Sales Adjustment;
(d) the NPR Adjustment;
(e) the Interest Adjustment;
(f) the Taxation Adjustment; (together, the Adjustments (with Adjustment meaning any or all of the above (as the context may require)), or are payable by the Buyer to ▇▇▇▇-▇▇▇▇▇ or by ▇▇▇▇-▇▇▇▇▇ to the Buyer pursuant to this clause 8, clause 10, Schedule 5 or Schedule 8 (together the Adjustment Clauses) or pursuant to a ▇▇▇▇-▇▇▇▇▇ Warranty Claim under clause 5 or a Buyer Warranty Claim under clause 6 or a payment under clause 12.4, the same shall operate by way of increases or decreases, as the case may be, in the Base Consideration.
8.2 The following principles shall apply in respect of the Adjustments and the Base Consideration:
(a) the Base Consideration shall be adjusted by the Adjustments;
(b) no item taken into account in calculating any one Adjustment or other increases or decreases as the case may be under the Adjustment Clauses or clause 5 or 6 or 12.4 shall be taken into account in calculating any of the other Adjustments so as to result in a Party making or receiving payment twice in respect thereof nor will any Party be entitled under clause 12 to reimbursement of any payment received from a third party to the extent such payment has been taken into account (to the benefit of that Party) in calculating any of the Adjustments;
(c) no adjustment to the Base Consideration shall be made in respect of any matters to which clauses 12.6 and 12.8 apply.
(a) ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement specifying its best estimate of the sum of all the Adjustments as at the Completion Date (the Interim Net Adjustment Amount) which if positive shall increase the Base Consideration payable by the Buyer at Completion and if negative shall reduce the Base Consideration payable by the Buyer at Completion.
(b) Such statement (the Interim Completion Statement) shall be provided no later than two (2) Business Days prior to Completion, in the format set out in Schedule 5.
8.4 Within sixty (60) days after Completion, and without prejudice to the provisions of clause 12, ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with a written statement (in the format set out in Schedule 5) giving its calculation of the final amounts of each of:
(a) the Adjustments save in relation to the Taxation Adjustment for which a reasonable estimate shall be calculated;
(b) the Net Adjustment Amount; and
(c) the balance payable by ▇▇▇▇-▇▇▇▇▇ or the Buyer after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion, (the Final Completion Statement). The Buyer shall notify ▇▇▇▇-▇▇▇▇▇ in writing (such notification being an Objection Notice) within fifteen (15) Business Days after receipt whether or not it accepts that the Final Completion Statement has been prepared in accordance with the relevant provisions of this Agreement. Any notice indicating that the Buyer does not so accept the Final Completion Statement shall to the extent practicable and reasonable:
(a) set out in detail the Buyer’s reasons for such non-acceptance; and
(b) specify the adjustments which, in the Buyer’s opinion, should be made to the Final Completion Statement in order to comply with the provisions of this Agreement; and
(c) set out the specific items that are in dispute accompanied by the Buyer’s calculation at its best estimate of each of the items that are in dispute (the Disputed Amounts). Except for Disputed Amounts, the Buyer shall be deemed to have accepted the Final Completion Statement in full.
8.5 If the Buyer serves an Objection Notice in accordance with clause 8.4 above, then the Buyer and ▇▇▇▇-▇▇▇▇▇ shall use all reasonable endeavours: (a) to meet and discuss the objections of the Buyer; and (b) to reach agreement upon the adjustments (if any) required to be made to the Final Completion Statement, within a period of ten (10) Business Days after receipt by ▇▇▇▇-▇▇▇▇▇ of the Objection Notice. During such ten (10) Business Days period ▇▇▇▇-▇▇▇▇▇ and its representatives shall be permitted to review the working papers of the Buyer and its representatives relating to the Objection Notice and the basis therefor.
8.6 If the Buyer notifies ▇▇▇▇-▇▇▇▇▇ in writing that it is satisfied with the Final Completion Statement (either as originally submitted or after adjustments agreed between ▇▇▇▇-▇▇▇▇▇ and the Buyer pursuant to clause 8.5) or if the Buyer fails to give an Objection Notice within the fifteen (15) Business Days period referred to in clause 8.4, then the payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) due in accordance with the Final Completion Statement shall be made within three (3) Business Days of such written notification or such failure to give an Objection Notice (as the case may be), together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.7 If the Parties cannot reach agreement as specified in clause 8.6 within the time limit provided in that clause, the Disputed Amounts may be referred by any Party for determination by an independent chartered accountant nominated by the Parties or, in the absence of agreement between the Parties within five (5) Business Days of a Party notifying the other that it proposes to refer the dispute to an expert, by the President of the Institute of Chartered Accountants in England and Wales (the Nominated Independent Accountant). The Parties shall instruct the Nominated Independent Accountant to render its decision within sixty (60) days of its selection. The Nominated Independent Accountant shall be afforded such access to books, records, accounts and documents in the possession of the Parties as he may reasonably request, and he shall act as expert not as arbitrator. The said accountant’s determination shall, in the absence of fraud or manifest error, be final and binding on the Parties, his fees and disbursements shall be borne by ▇▇▇▇-▇▇▇▇▇ as to one half and the Buyer as to the other half and each party shall bear its own costs in respect of such references. Payment of the Net Adjustment Amount (after taking into account the Interim Net Adjustment Amount which adjusted the Base Consideration paid at Completion) in accordance with the Nominated Independent Accountant’s determination of the Disputed Amounts and in accordance with the Final Completion Statement in respect of all other items shall be made within three (3) Business Days of the determination of the Nominated Independent Accountant, together with simple interest on such amount from and including the Completion Date up to and excluding the date of payment calculated on a daily basis on the basis of a 360 day year at the rate of 2% per annum above the Reference Interest Rate.
8.8 ▇▇▇▇-▇▇▇▇▇ shall provide the Buyer with copies of all Operator’s reports, billing statements and correspondence and any and all other relevant documentation in its possession or under its control reasonably necessary to support the statements referred to in clauses 8.3 and 8.4 simultaneously with the provision of such statements. The Parties shall liaise on the compilation and agreement of the said statements.
8.9 To enable ▇▇▇▇-▇▇▇▇▇ to meet its obligations under this clause 8, the Buyer shall provide to ▇▇▇▇-▇▇▇▇▇ and to ▇▇▇▇-▇▇▇▇▇’▇ accountants full access to the books and records, employees and premises of the Buyer. The Buyer shall fully co-operate with ▇▇▇▇-▇▇▇▇▇ and shall permit ▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇▇’▇ accountants to take copies (including electronic copies) of the relevant books and records and shall provide all assistance reasonably requested by ▇▇▇▇-▇▇▇▇▇ to facilitate the preparation of the Final Completion Statement. The Buyer hereby agrees not to take any action which would impede or delay the preparation of the Final Completion Statement or the determination of the Total Consideration in the manner and using the methods required by this Agreement. The provisions of this clause 8.9 shall apply mutatis mutandis to ▇▇▇▇-▇▇▇▇▇ in relation to the obligations of the Buyer under this clause 8.
8.10 All of the calculations to be made pursuant to this clause 8 shall be made on an Accrual Basis of Accounting and in accordance with accounting principles generally accepted in the oil and gas industry in the United Kingdom at the date of Completion unless otherwise stated in this Agreement and such principles shall be consistently applied for the purposes of any and all disputes between the Parties.
8.11 Notwithstanding any contrary provision in this Agreement the Parties agree to cooperate in order to re-calculate the estimated Taxation Adjustment (referred to in clause 8.4) prior to 30 June 2006 in accordance with the provisions of Schedule 8; provided that this re-calculation shall not have any impact on the Final Completion Statement or the Total Consideration and the provisions of clause 8.7 shall apply mutatis mutandis in the event of failure to agree such Taxation Adjustment by 30 June 2006.
8.12 In the event of late payment, clause 13 will apply.
8.13 Following Completion in the event that there is an Aggregate Carry Forward (“ACF”) under the Brae Principal Agreement existing at the end of Contract Year 2003/2004 ▇▇▇▇-▇▇▇▇▇ shall pay to the Buyer a sum equal to the sales price which would have been payable under the Brae Principal Agreement at the time the ACF (or any part thereof) is lifted as if there had been no ACF, such sum to be payable from time to time to the Buyer within thirty (30) Business Days of production of reasonable evidence by the Buyer to ▇▇▇▇-▇▇▇▇▇ that the ACF has been so lifted.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Assets (Kerr McGee Corp /De)