Expenses and Working Capital Sample Clauses

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Expenses and Working Capital. SECTION 9.1 Allocation of Expenses

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Expenses and Working Capital 

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• Net Working Capital At least three (3) business days prior to the Closing Date, Sellers shall deliver to Buyer a certificate (the “Estimated NWC Certificate”), including a consolidated balance sheet of the Company as of the Closing Date, prepared in accordance with the accounting principles, methods, practices, estimates, judgments and assumptions applied in the preparation of the Company’s financial statements, consistently applied (the “Accounting Principles”), which shall include (a) the Sellers’ good faith estimate (such estimate is referred to as the “Estimated Net Working Capital Amount”) of the “Net Working Capital Amount.” As used herein, “Net Working Capital Amount” means the Net Working Capital of the Company as of 11:59 p.m. EST on the day immediately preceding the Closing Date. “Net Working Capital” means the result of (i) all cash of the Company minus (ii) all current liabilities (excluding the Existing Indebtedness) of the Company, in each case determined in accordance with the Accounting Principles. The Purchase Price at Closing shall be increased by the Estimated Net Working Capital Amount. No later than ninety (90) days following the Closing Date, Buyer shall prepare and deliver to Sellers (i) a consolidated balance sheet of the Company dated at the Closing Date, which shall be prepared in accordance with the Accounting Principles and (ii) a reasonably detailed statement (the “Final NWC Certificate”) setting forth Buyer’s calculations of the Net Working Capital Amount. If Sellers have any objections to the Final NWC Certificate, Sellers shall deliver to Buyer a statement setting forth its objections thereto (an “Objections Statement”), provided that the only bases for objections shall be (i) non-compliance with the standards set forth above for preparation of the Final NWC Certificate, or as set forth in the definition of Net Working Capital, and (ii) mathematical errors. If an Objections Statement is not delivered to Buyer within thirty (30) days after delivery of the Final NWC Certificate, the Final NWC Certificate shall be final, binding and non-appealable by the parties hereto. Sellers and Buyer shall negotiate in good faith to resolve any objections set forth in the Objections Statement (and all such discussions related thereto shall, unless otherwise agreed by Buyer and Sellers, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of the Objections Statement, Sellers and Buyer may submit such dispute to one of the “Big Four” accounting firms other than Ernst & Young LLP or PricewaterhouseCoopers LLP, or, in the event that any such auditor is unable to accept such appointment, to any other nationally recognized independent accounting firm mutually acceptable to Buyer and Sellers (the “Independent Auditor”). Each party shall be afforded an opportunity to present to the Independent Auditor material relating to the disputed issues and to discuss the determination with the Independent Auditor. The Independent Auditor shall act as an auditor and not as an arbitrator and shall resolve matters in dispute and adjust and establish any disputed adjustment of the Net Working Capital Amount to reflect such resolution, provided that the Independent Auditor shall not assign a value to any item or amount in dispute greater than the greatest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand. It is the intent of Buyer and Sellers that the process set forth in this Section 11(F) and the activities of the Independent Auditor in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Sellers and Buyer shall use their commercially reasonable efforts to cause the Independent Auditor to resolve all such disagreements as promptly as practicable. The resolution of the dispute by the Independent Auditor shall be final, binding and non-appealable on the parties hereto. The Final NWC Certificate shall be modified if necessary to reflect such determination. The fees and expenses of the Independent Auditor shall be allocated for payment by Buyer, on the one hand, and/or Sellers, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Independent Auditor. If the Net Working Capital Amount as finally determined pursuant to the dispute resolution procedures described above is greater than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Buyer shall pay to Sellers cash equal to the amount by which the Net Working Capital Amount exceeds the Estimated Net Working Capital Amount. If the Net Working Capital Amount as finally determined pursuant to the dispute resolution procedures described above is less than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Sellers shall pay to Buyer cash equal to the amount by which the Estimated Net Working Capital Amount exceeds the Net Working Capital Amount.

• Working Capital Upon consummation of the Offering, it is intended that approximately $1,000,000 of the Offering proceeds will be released to the Company and held outside of the Trust Account to fund the working capital requirements of the Company.

• Net Working Capital Adjustment (a) Within sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to Seller a statement (the “Closing Statement”) calculating the Net Working Capital as of immediately prior to the Effective Time (the “Closing Net Working Capital”) as well as the adjustments to Transaction Consideration which shall be made pursuant to this Section 1.6, together with all underlying documentation supporting such calculations. Seller shall reasonably cooperate with Purchaser in its preparation of the Closing Statement.

• Working Capital Adjustment (a) Subject to the provisions of this Section 2.6, the Purchase Price will be adjusted on a dollar for dollar basis following the Closing to the extent that the Working Capital of the Business as of the Closing (the "Final Working Capital") is greater or less than the Minimum Working Capital. As promptly as practicable, but in no event later than forty five (45) days after the Closing, the Company shall prepare and deliver to Buyer a statement of the Working Capital, reflecting each of the components of Working Capital as if set forth on a balance sheet, of the Business as of Closing Date which shall have been examined and reported on by Company's Auditor (the "Closing Working Capital Statement"). The report of Company's Auditor shall be made to the Company and Buyer and shall state that the Closing Working Capital Statement (i) has been prepared in conformity with the terms of this Agreement, (ii) was prepared in conformity with GAAP (except as otherwise provided herein), and applied on a consistent basis with those policies used by the Company ("Company Policies") in connection with the preparation of the financial statements of the Company for the fiscal year ended January 2, 2000, and (iii) presents fairly, in all material respects, the Working Capital of the Business at the Closing Date, and that the audit by Company's Auditor was conducted in accordance with generally accepted auditing standards. The Closing Working Capital Statement shall be prepared in accordance with the books and records of the Company and in conformity with GAAP, applied on a consistent basis with Company Policies, except that (i) accounts receivable shall reflect only trade accounts receivable of the Business, (ii) accounts payable shall reflect only trade accounts payable of the Business and a payable to Pepsi-Cola and National Brand Beverages, Ltd. of $2,000,000 and shall exclude any accounts payable if including such accounts payable would result in the aggregate accounts payable exceeding the aggregate accounts receivable, (iii) the allowance for doubtful accounts receivable shall be zero, (iv) the value of Inventory shall be adjusted in accordance with the Company's year end adjustment procedures and (v) Retained Assets and Retained Liabilities shall be excluded. Promptly after the Closing, but in no event later than October 22, 2000, Buyer and the Company shall cooperate to permit the Company's Auditor to perform a physical count and inspection of the Inventory for purposes of preparing the Closing Working Capital Statement. The timing of such physical count and inspection shall be coordinated with Buyer and Buyer's Auditor so as to minimize disruption to Buyer's business and to allow Buyer's Auditor to be present at such physical count and inspection. For purposes of this Agreement, the Inventory to be stated on the Closing Working Capital Statement shall be the Inventory at the time of such physical count and inspection as adjusted in accordance with the books and records of the Company to the effective time of the Closing. The Company shall permit Buyer and Buyer's Auditor to review all work papers and computations used by the Company and Company's Auditor in preparing the Closing Working Capital Statement. After the Closing Date, until agreement is reached as to the Closing Working Capital Statement, for purposes of this Section 2.6, Buyer shall permit the Company and Company's Auditor full and free access, at all reasonable times, to the deeds, documents and contracts and books of account, records, files, invoices and other data associated with, necessary to or used in the Business as conducted on or before the Closing Date; provided, however, that the Company shall coordinate such access with Buyer in order to minimize disruption to the conduct of Buyer's business. Buyer shall within thirty (30) days after the receipt of the Closing Working Capital Statement advise the Company in writing of the amounts and descriptions of adjustments relating to Working Capital, if any, which Buyer believes are necessary to be made to the Closing Working Capital Statement. In the event that Buyer and the Company are unable to resolve any differences with respect to the Working Capital reflected on the Closing Working Capital Statement within sixty (60) days after receipt of the Closing Working Capital Statement by Buyer, then the issues remaining unresolved shall be determined as follows: Buyer and the Company shall jointly select and retain an independent firm of certified public accountants of national standing and reputation in the United States (the "Independent Firm") for the purpose of resolving within the ranges proposed by Buyer and the Company all remaining unresolved issues with respect to the Working Capital. If Buyer and the Company are not able to agree upon the Independent Firm within seventy-five (75) days after receipt of the Closing Working Capital Statement by Buyer, then the Independent Firm shall be selected by lot after Buyer has eliminated two (2) of the three (3) independent firms of public accountants of national standing and reputation in the United States selected by the Company and the Company has eliminated two (2) of the three (3) such firms selected by Buyer; provided, however, that Buyer's Auditor shall not be one of the three independent firms selected by Buyer and Company's Auditor shall not be one of the three independent firms selected by the Company.

• Transaction Expenses Whether or not the transactions contemplated hereby are consummated, the Company will pay all reasonable costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, any Guaranty Agreement or the Notes (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, any Guaranty Agreement or the Notes or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, any Guaranty Agreement or the Notes, or by reason of being a holder of any Note; (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes and any Guaranty Agreement; and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed $3,000. If required by the NAIC, the Company shall obtain and maintain at its own cost and expense a Legal Entity Identifier (LEI). The Company will pay, and will save each Purchaser and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes) and (ii) any judgment, liability, claim, order, decree, fine, penalty, cost, fee, expense (including reasonable attorneys’ fees and expenses) or obligation resulting from the consummation of the transactions contemplated hereby, including the use of the proceeds of the Notes by the Company, due to (a) any failure of any representation or warranty of the Company in this Agreement to be true and correct in all material respects on the date as of which made and at the time of the Closing (except, in each case, to the extent any representation or warranty expressly relates to a different date, in which case as of such different date) or (b) any failure by the Company to perform or comply in all material respects with any covenant or agreement contained in this Agreement.

• Closing Expenses Seller shall pay for the preparation of the Special Warranty Deed, such deed to substantially conform to the provisions of the deed attached hereto as Exhibit B and incorporated by this reference herein. Seller shall provide and pay for all other documents necessary to perform Seller's obligations under this Contract, its attorney’s fees and for the "Grantor’s Tax". Buyer shall pay for (a) recording the Deed and for preparation and recording of all instruments required to secure the balance of the Purchase Price unpaid at Closing, (b) all recordation and transfer taxes, other than the "Grantor's Tax," (c) its attorney’s fees, (d) all costs of a title examination, a title report, a title commitment and one or more title insurance policies, and (e) all other Closing costs, including without limitation, fees to the Settlement Agent.

• Sellers’ Costs and Expenses Except as may otherwise be provided in this Agreement, including Section 8.1, or in the Purchase Agreement, all expenses and costs incurred by the Sellers in connection with the performance of their obligations hereunder shall be the responsibility of, paid by and for the account of the Sellers.

• Liquidation and Acquisition Expenses 1. The Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an Amortization Schedule from date of default through liquidation breaking out the net interest and servicing fees advanced is required.

• Transaction Costs Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees or taxes, costs of environmental reports, Physical Conditions Reports, appraisals and other reports, the fees and costs of Lender's counsel and all other third party out-of-pocket expenses incurred in connection with the origination of the Loan.

• Company Expenses Subject to the limitations described below, the Company agrees to pay all costs and expenses incident to the Offering, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, including expenses, fees and taxes in connection with: (a) the registration fee, the preparation and filing of the Registration Statement (including without limitation financial statements, exhibits, schedules and consents), the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Dealer Manager and to Participating Dealers (including costs of mailing and shipment); (b) the preparation, issuance and delivery of certificates, if any, for the Offered Shares, including any stock or other transfer taxes or duties payable upon the sale of the Offered Shares; (c) all fees and expenses of the Company’s legal counsel, independent public or certified public accountants and other advisors; (d) the qualification of the Offered Shares for offering and sale under state laws in the states, including the Qualified Jurisdictions, that the Company shall designate as appropriate and the determination of their eligibility for sale under state law as aforesaid and the printing and furnishing of copies of blue sky surveys; (e) filing for review by FINRA of all necessary documents and information relating to the Offering and the Offered Shares (including the reasonable legal fees and filing fees and other disbursements of counsel relating thereto); (f) the fees and expenses of any transfer agent or registrar for the Offered Shares and miscellaneous expenses referred to in the Registration Statement; (g) all costs and expenses incident to the travel and accommodation of the Advisor’s personnel, and the personnel of any sub-advisor designated by the Advisor and acting on behalf of the Company, in making road show presentations and presentations to Participating Dealers and other broker-dealers and financial advisors with respect to the offering of the Offered Shares; and (h) the performance of the Company’s other obligations hereunder. Notwithstanding the foregoing, the Company shall not directly pay, or reimburse the Advisor for, the costs and expenses described in this Section 3.1 if the payment or reimbursement of such expenses would cause the aggregate of the Company’s “organization and offering expenses” as defined by FINRA Rule 2310 (including the Company expenses paid or reimbursed pursuant to this Section 3.1, all items of underwriting compensation including Dealer Manager expenses described in Section 3.2 and due diligence expenses described in Section 3.3) to exceed 15.0% of the gross proceeds from the sale of the Primary Shares.