Final Adjustment. Following the time that the amounts of the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness and the Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04 (such finally determined amounts, respectively, the “Final Closing Date Cash”, the “Final Unpaid Company Transaction Expenses”, the “Final Closing Date Indebtedness”, the “Final Paid CapEx Amount” and the “Final Closing Date Adjusted Working Capital”), the Purchase Price shall (for the purposes of this Section 2.04(d)) be recalculated using the amounts of the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital in lieu of the Estimated Closing Date Cash, the Estimated Unpaid Company Transaction Expenses, the Estimated Closing Date Indebtedness, the Paid CapEx Amount and the Estimated Closing Date Adjusted Working Capital and: (i) if (A) the result of the Purchase Price as so recalculated is greater than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such excess of (A) over (B), the “Surplus”), then Purchaser shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) pay to Seller an amount equal to the Surplus and (II) cause the Escrow Agent to release all amounts in the Adjustment Escrow Account to Seller, in each case by wire transfer of immediately available funds to an account designated in writing by Seller; or (ii) if (A) the result of the Purchase Price as so recalculated is less than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such deficit of (A) relative to (B), the “Deficit”), then Seller shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) cause the Escrow Agent to pay to Purchaser an amount equal to the Deficit, by wire transfer of immediately available funds from the Adjustment Escrow Account to an account designated in writing by Purchaser and (II) upon such payment, will cause the Escrow Agent to release all remaining funds in the Adjustment Escrow Account, if any, to Seller by wire transfer of immediately available funds to an account designated in writing by Seller. In the event the Adjustment Escrow Amount is insufficient to satisfy any amount due to Purchaser under this Section 2.04(d)(ii), no later than five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, the unpaid balance due shall be paid by Seller to Purchaser by wire transfer of immediately available funds to an account designated in writing by Purchaser, except that, in the event such shortfall is not paid within five (5) Business Days, Purchaser may elect, in its sole discretion, to satisfy such amount from the Indemnity Escrow Amount. If Purchaser elects to satisfy such shortfall from the Indemnity Escrow Amount, Seller will, within five (5) days after written notice of such election, deliver to the Escrow Agent, by wire transfer of immediately available funds, the amount withdrawn by the Escrow Agent and paid to Purchaser in accordance with the provisions of this Section 2.04(d)(ii), to be held in escrow as part of the Indemnity Escrow Account pursuant to the terms of the Escrow Agreement. Except for Seller’s indemnification obligations pursuant to Section 9.01(a)(iii) and Section 9.01(a)(iv) with respect to the Unpaid Company Transaction Expenses, and the Closing Date Indebtedness, to the extent not taken into account in the Closing Payments or the Closing Statement pursuant to this Section 2.04, the procedure set forth in this Section 2.04 for resolving disputes with respect to the Closing Statement shall be the exclusive method for resolving any disputes with respect to the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness, the Paid CapEx Amount and the Closing Date Adjusted Working Capital and any resulting proposed adjustment to the Purchase Price set forth in the Closing Statement.
Appears in 1 contract
Final Adjustment. Following (i) If the time that the amounts of the Closing Date CashFinal Adjustment is a negative number, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness Seller and the Closing Date Adjusted Working Capital are Buyer shall deliver a joint written authorization to the Escrow Agent within two Business Days from the date on which the Final Adjustment is finally determined pursuant to this Section 2.04 (such finally determined amounts2.3, respectively, the “Final Closing Date Cash”, the “Final Unpaid Company Transaction Expenses”, the “Final Closing Date Indebtedness”, the “Final Paid CapEx Amount” and the “Final Closing Date Adjusted Working Capital”), the Purchase Price shall (for the purposes of this Section 2.04(d)) be recalculated using the amounts of the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital in lieu of the Estimated Closing Date Cash, the Estimated Unpaid Company Transaction Expenses, the Estimated Closing Date Indebtedness, the Paid CapEx Amount and the Estimated Closing Date Adjusted Working Capital and:
(i) if (A) the result of the Purchase Price as so recalculated is greater than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such excess of (A) over (B), the “Surplus”), then Purchaser shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) pay to Seller an amount equal to the Surplus and (II) cause authorizing the Escrow Agent to release all amounts from the Net Working Capital Escrow Account (A) an amount of cash equal to the absolute value of the Final Adjustment to the Buyer and (B) any funds remaining in the Adjustment Net Working Capital Escrow Account to Seller, the Seller (in each case an amount equal to 98.698208% of the funds remaining) and the Buyer (in an amount equal to 1.301792% of the funds remaining) by bank wire transfer of immediately available funds to an account the accounts designated in writing by Seller; or
(ii) if (A) the result of Seller and the Purchase Price as so recalculated Buyer to the Escrow Agent prior to the date such payment is less than (B) due hereunder, which such amount must be paid by the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such deficit of (A) relative to (B), the “Deficit”), then Seller shall, Escrow Agent within five (5) Business Days after from the date on which the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are Adjustment is finally determined pursuant to this Section 2.04, 2.3 (I) cause the Escrow Agent to pay to Purchaser an amount equal to the Deficit, by wire transfer of immediately available funds from the Adjustment Escrow Account to an account designated in writing by Purchaser and (II) upon such payment, will cause the Escrow Agent to release all remaining funds in the Adjustment Escrow Account, if any, to Seller by wire transfer of immediately available funds to an account designated in writing by Seller“Payment Period”). In the event the Adjustment Net Working Capital Escrow Amount is insufficient less than the absolute value of the Final Adjustment that is a negative number, the Seller shall pay an amount equal to satisfy any amount due 98.698208% of such shortfall to Purchaser under this Section 2.04(d)(ii)the Buyer as an adjustment to the Purchase Price within the Payment Period.
(ii) If the Final Adjustment is a positive number, no later than five (5A) the Seller and the Buyer shall deliver a joint written authorization to the Escrow Agent within two Business Days after from the date on which the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are Adjustment is finally determined pursuant to this Section 2.042.3, authorizing the unpaid balance due shall be paid by Seller Escrow Agent to Purchaser by wire transfer of immediately available funds to an account designated in writing by Purchaser, except that, in the event such shortfall is not paid within five (5) Business Days, Purchaser may elect, in its sole discretion, to satisfy such amount release from the Indemnity Net Working Capital Escrow Amount. If Purchaser elects to satisfy such shortfall from Account the Indemnity amount of the Net Working Capital Escrow Amount, Seller will, within five (5) days after written notice of such election, deliver Amount to the Escrow Agent, Seller (in an amount equal to 98.698208% of the funds released) and the Buyer (in an amount equal to 1.301792% of the funds released) by wire transfer of immediately available funds, to the accounts designated in writing by the Seller and the Buyer, which such amount withdrawn must be paid by the Escrow Agent within the Payment Period, and paid to Purchaser in accordance with (B) the provisions of this Section 2.04(d)(ii), Buyer shall pay or cause to be held in escrow as part paid an amount of cash equal to 98.698208% of the Indemnity Escrow Account pursuant Final Adjustment to the terms Seller and an amount of cash equal to 1.301792% of the Escrow Agreement. Except for Seller’s indemnification obligations pursuant Final Adjustment to Section 9.01(a)(iii) and Section 9.01(a)(iv) with respect to the Unpaid Company Transaction Expenses, and the Closing Date Indebtednessby wire transfer of immediately available funds, to the extent not taken into account designated in the Closing Payments or the Closing Statement pursuant to this Section 2.04, the procedure set forth in this Section 2.04 for resolving disputes with respect to the Closing Statement shall be the exclusive method for resolving any disputes with respect to the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness, the Paid CapEx Amount and the Closing Date Adjusted Working Capital and any resulting proposed adjustment to the Purchase Price set forth in the Closing Statementwriting by such payee.
Appears in 1 contract
Sources: Equity Purchase Agreement (Compass Group Diversified Holdings LLC)
Final Adjustment. Following Once Seller Representative and Purchaser agree upon or otherwise arrive at, or once the time that the amounts of the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness and the Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04 (such finally determined amounts, respectively, the “Final Closing Date Cash”, the “Final Unpaid Company Transaction Expenses”, the “Final Closing Date Indebtedness”, the “Final Paid CapEx Amount” and the “Final Closing Date Adjusted Working Capital”), the Purchase Price shall (for the purposes of this Section 2.04(d)) be recalculated using the amounts of the Final Closing Date CashAccountant has made a final determination on, the Final Unpaid Company Transaction ExpensesAggregate Loan UPB Purchase Price, the Final Closing Date IndebtednessAggregate Cost of Carry Fees, the Final Aggregate Pre-Closing Servicing Fees, the Final Aggregate Pre-Closing Net Cash Flow Amount, the Final Aggregate Pre-Closing Fees, the Final Aggregate Pre-Paid CapEx Amount Fees and the Final Closing Date Adjusted Working Capital in lieu of Aggregate Customer Reversal Amount pursuant to the Estimated Closing Date Cashforegoing procedures, Sellers or Purchaser, as the Estimated Unpaid Company Transaction Expensescase may be, shall make the Estimated Closing Date Indebtednessfollowing payments, after netting against each other, without duplication, all payments required to be made by Sellers and/or Purchaser, as the Paid CapEx Amount and the Estimated Closing Date Adjusted Working Capital and:
case may be, pursuant to clauses (i) if through (Axiv) the result of the Purchase Price as so recalculated is greater than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (immediately below, with all such excess of (A) over (B), the “Surplus”), then Purchaser shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) pay to Seller an amount equal payments being made to the Surplus and (II) cause the Escrow Agent to release all amounts in the Adjustment Escrow Account to Seller, in each case by applicable Person via wire transfer of immediately available funds to an the account or accounts designated in writing by Seller; orthe Person entitled to receive such payment:
(i) To the extent the Final Aggregate Loan UPB Purchase Price is less than the Estimated Aggregate Loan UPB Purchase Price, Sellers shall repay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(ii) if (A) To the result extent the Final Aggregate Loan UPB Purchase Price is greater than the Estimated Aggregate Loan UPB Purchase Price, Purchaser shall pay such amount to Seller Representative, for distribution to Sellers, within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Purchase Price Closing Date.
(iii) To the extent the Final Aggregate Cost of Carry Fees are less than the Estimated Aggregate Cost of Carry Fees, Sellers shall repay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as so recalculated of the Closing Date.
(iv) To the extent the Final Aggregate Cost of Carry Fees are greater than the Estimated Aggregate Cost of Carry Fees, Purchaser shall pay such amount to Seller Representative, for distribution to Sellers, within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(v) To the extent the Final Aggregate Pre-Closing Servicing Fees are less than the Estimated Aggregate Pre-Closing Servicing Fees, Sellers shall repay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(vi) To the extent the Final Aggregate Pre-Closing Servicing Fees are greater than the Estimated Aggregate Pre-Closing Servicing Fees, Purchaser shall pay such amount to Seller Representative, for distribution to Sellers, within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(vii) To the extent the Final Aggregate Pre-Closing Net Cash Flow Amount is less than (B) the Estimated Purchase Price paid Aggregate Pre-Closing Net Cash Flow Amount, Purchaser shall repay such amount to Seller at Closing pursuant Representative, for distribution to Section 2.03(c)(ii) (such deficit of (A) relative to (B), the “Deficit”), then Seller shallSellers, within five (5) Business Days after following such determination, together with interest on such amount for the Final period from and including the Closing Date Cash, to but excluding the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) cause the Escrow Agent to pay to Purchaser an amount date of such payment at a rate per annum equal to the DeficitPrime Rate as of the Closing Date.
(viii) To the extent the Final Aggregate Pre-Closing Net Cash Flow Amount is greater than the Estimated Aggregate Pre-Closing Net Cash Flow Amount, by wire transfer Sellers shall pay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of immediately available funds such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(ix) To the extent the Final Aggregate Pre-Closing Fees are less than the Estimated Aggregate Pre-Closing Fees, Sellers shall repay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the period from and including the Adjustment Escrow Account Closing Date to an account designated in writing by but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(x) To the extent the Final Aggregate Pre-Closing Fees are greater than the Estimated Aggregate Pre-Closing Fees, Purchaser and (II) upon shall pay such payment, will cause the Escrow Agent to release all remaining funds in the Adjustment Escrow Account, if any, amount to Seller by wire transfer of immediately available funds Representative, for distribution to an account designated in writing by Seller. In the event the Adjustment Escrow Amount is insufficient to satisfy any amount due to Purchaser under this Section 2.04(d)(ii), no later than five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, the unpaid balance due shall be paid by Seller to Purchaser by wire transfer of immediately available funds to an account designated in writing by Purchaser, except that, in the event such shortfall is not paid within five (5) Business Days, Purchaser may elect, in its sole discretion, to satisfy such amount from the Indemnity Escrow Amount. If Purchaser elects to satisfy such shortfall from the Indemnity Escrow Amount, Seller willSellers, within five (5) days after written notice of Business Days following such electiondetermination, deliver to together with interest on such amount for the Escrow Agent, by wire transfer of immediately available funds, the amount withdrawn by the Escrow Agent period from and paid to Purchaser in accordance with the provisions of this Section 2.04(d)(ii), to be held in escrow as part of the Indemnity Escrow Account pursuant to the terms of the Escrow Agreement. Except for Seller’s indemnification obligations pursuant to Section 9.01(a)(iii) and Section 9.01(a)(iv) with respect to the Unpaid Company Transaction Expenses, and including the Closing Date Indebtedness, to but excluding the date of such payment at a rate per annum equal to the extent not taken into account in Prime Rate as of the Closing Payments or Date.
(xi) To the Closing Statement pursuant extent the Final Aggregate Pre-Paid Fees are less than the Estimated Aggregate Pre-Paid Fees, Purchaser shall repay such amount to this Section 2.04Seller Representative, for distribution to Sellers, within five Business Days following such determination, together with interest on such amount for the procedure set forth in this Section 2.04 for resolving disputes with respect to the Closing Statement shall be the exclusive method for resolving any disputes with respect to period from and including the Closing Date Cashto but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(xii) To the extent the Final Aggregate Pre-Paid Fees are greater than the Estimated Aggregate Pre-Paid Fees, Sellers shall pay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the Unpaid Company Transaction Expenses, period from and including the Closing Date Indebtednessto but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
(xiii) To the extent the Final Aggregate Customer Reversal Amount is less than the Estimated Aggregate Customer Reversal Amount, Sellers shall repay such amount to Purchaser within five Business Days following such determination, together with interest on such amount for the Paid CapEx Amount period from and including the Closing Date Adjusted Working Capital and any resulting proposed adjustment to but excluding the date of such payment at a rate per annum equal to the Purchase Price set forth in Prime Rate as of the Closing StatementDate.
(xiv) To the extent the Final Aggregate Customer Reversal Amount is greater than the Estimated Aggregate Customer Reversal Amount, Purchaser shall pay such amount to Seller Representative, for distribution to Sellers, within five Business Days following such determination, together with interest on such amount for the period from and including the Closing Date to but excluding the date of such payment at a rate per annum equal to the Prime Rate as of the Closing Date.
Appears in 1 contract
Final Adjustment. Following the time that the amounts of the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness and the Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04 (such finally determined amounts, respectively, the “Final Closing Date Cash”, the “Final Unpaid Company Transaction Expenses”, the “Final Closing Date Indebtedness”, the “Final Paid CapEx Amount” and the “Final Closing Date Adjusted Working Capital”), the Purchase Price shall (for the purposes of this Section 2.04(d)) be recalculated using the amounts of the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital in lieu of the Estimated Closing Date Cash, the Estimated Unpaid Company Transaction Expenses, the Estimated Closing Date Indebtedness, the Paid CapEx Amount and the Estimated Closing Date Adjusted Working Capital and:
(i) if (A) the result of the Purchase Price as so recalculated is greater than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such excess of (A) over (B), the “Surplus”), then Purchaser shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) pay to Seller an amount equal to the Surplus and (II) cause the Escrow Agent to release all amounts in the Adjustment Escrow Account to Seller, in each case by wire transfer of immediately available funds to an account designated in writing by Seller; or
(ii) if (A) the result of the Purchase Price as so recalculated is less than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such deficit of (A) relative to (B), the “Deficit”), then Seller shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I) cause the Escrow Agent to pay to Purchaser an amount equal to the Deficit, by wire transfer of immediately available funds from the Adjustment Escrow Account to an account designated in writing by Purchaser and (II) upon such payment, will cause the Escrow Agent to release all remaining funds in the Adjustment Escrow Account, if any, to Seller by wire transfer of immediately available funds to an account designated in writing by Seller. In the event the Adjustment Escrow Amount is insufficient to satisfy any amount due to Purchaser under this Section 2.04(d)(ii), no Not later than five (5) Business Days after the Final Closing Date Cash, determination of the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount Net Working Capital and the Final Cash Amount pursuant to Section 1.3(b) or Section 1.3(c), as the case may be (the “Adjustment Payment Date”), (i) if the Final Net Working Capital is less than the Estimated Net Working Capital, then the Seller shall pay to Buyer in immediately available funds the amount of the difference, plus interest thereon at the Applicable Rate from (and including) the Closing Date Adjusted to (but excluding) the date paid and (ii) if the amount of the Final Net Working Capital are finally determined pursuant is greater than the Estimated Net Working Capital, then Buyer shall pay to this Section 2.04the Seller, the unpaid balance due shall be paid by Seller to Purchaser by wire transfer of immediately available funds to an the account designated in writing by PurchaserSeller, except thatthe amount of the difference, in plus interest thereon at the event such shortfall Applicable Rate from (and including) the Closing Date to (but excluding) the date paid. In addition, not later than the Adjustment Payment Date, (i) if the Final Cash Amount is not paid within five (5) Business Days, Purchaser may elect, in its sole discretion, to satisfy such amount from less than the Indemnity Escrow Amount. If Purchaser elects to satisfy such shortfall from the Indemnity Escrow Estimated Cash Amount, then the Seller willshall pay to Buyer in immediately available funds the amount of the difference, within five plus interest thereon at the Applicable Rate per annum from (5and including) days after written notice the Closing Date to (but excluding) the date paid and (ii) if the amount of such electionthe Final Cash Amount is greater than the Estimated Cash Amount, deliver then Buyer shall pay to the Escrow AgentSeller, by wire transfer of immediately available fundsfunds to the account designated in writing by Seller, the amount withdrawn by the Escrow Agent and paid to Purchaser in accordance with the provisions of this Section 2.04(d)(ii), to be held in escrow as part of the Indemnity Escrow Account pursuant to difference, plus interest thereon at the terms of the Escrow Agreement. Except for Seller’s indemnification obligations pursuant to Section 9.01(a)(iiiApplicable Rate from (and including) and Section 9.01(a)(iv) with respect to the Unpaid Company Transaction Expenses, and the Closing Date Indebtedness, to (but excluding) the extent not taken into account in date paid. In the Closing Payments or the Closing Statement event a party that is obligated to make a payment pursuant to this Section 2.041.3(d) fails to make such payment in full on or before the Adjustment Payment Date, the procedure set forth in unpaid amount shall bear interest at the Applicable Rate plus 2% per annum from (and including) the Adjustment Payment Date to (but excluding) the date on which such unpaid amount is paid. Any amount which is due from Seller to Buyer pursuant to this Section 2.04 for resolving disputes with respect 1.3(d) may be paid by releasing funds from the Escrow Account to Buyer (and any amounts in the Closing Statement Escrow Account remaining after Seller’s obligations to Buyer under this Section 1.3(d) have been fully satisfied shall be the exclusive method for resolving any disputes with respect released to the Closing Date CashSeller). If no amount is due from Seller to Buyer pursuant to this Section 1.3(d), the Unpaid Company Transaction Expenses, the Closing Date Indebtedness, the Paid CapEx Amount and the Closing Date Adjusted Working Capital and any resulting proposed adjustment to the Purchase Price set forth all amounts in the Closing StatementEscrow Account shall be released to Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Real Estate Partners L P)
Final Adjustment. Following the time that the amounts of the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness and the Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04 1.4 (such finally determined amounts, respectively, the “Final Closing Date Cash”, the “Final Unpaid Company Transaction Expenses”, the “Final Closing Date Indebtedness”, the “Final Paid CapEx Amount” and the “Final Closing Date Adjusted Working Capital”), the Purchase Price shall (for the purposes of this Section 2.04(d1.4(d)) be recalculated using the amounts of the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount Indebtedness and the Final Closing Date Adjusted Working Capital in lieu of the Estimated Closing Date Cash, the Estimated Unpaid Company Transaction Expenses, the Estimated Closing Date Indebtedness, the Paid CapEx Amount Indebtedness and the Estimated Closing Date Adjusted Working Capital and:
(i) if (Ax) the result of the Purchase Price as so recalculated finally determined pursuant to this Section 1.4 is greater than (By) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such excess of (Ax) over less (By), the “Surplus”), then Purchaser Parent shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount Indebtedness and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.041.4, (I) pay to Seller an amount equal to the Surplus and Sellers on a pro rata basis (IIbased on such Seller’s Pro Rata Percentage) cause the Escrow Agent to release all amounts in the Adjustment Escrow Account to Seller, in each case by wire transfer of immediately available funds to an account account(s) designated in writing by Sellers, an aggregate amount equal to the Surplus, and the Sellers’ Representative and Parent shall jointly instruct the Adjustment Escrow Agent in writing to release any amounts of the Adjustment Escrow Funds to the Sellers on a pro rata basis (based on such Seller’s Pro Rata Percentage); or
(ii) if (Ax) the result of the Purchase Price as so recalculated finally determined pursuant to this Section 1.4 is less than (By) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such deficit of (Ax) relative to (By), the “Deficit”), then Seller the Sellers’ Representative and Parent shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount Indebtedness and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.041.4, (I) cause jointly instruct the Adjustment Escrow Agent in writing to pay to Purchaser Parent by wire transfer of immediately available funds, out of the Adjustment Escrow Funds, an amount equal to the Deficit, by wire transfer . If the Deficit is less than the amount of immediately available funds from the Adjustment Escrow Account to an account designated in writing by Purchaser Funds, Sellers’ Representative and (II) upon such payment, will cause the Escrow Agent to release all remaining funds in Parent shall jointly instruct the Adjustment Escrow Account, if any, Agent in writing to Seller release to Sellers on a pro rata basis (based on such Seller’s Pro Rata Percentage) the remaining Adjustment Escrow Funds by wire transfer of immediately available funds to an account designated in writing by SellerSellers. In Sellers shall have no obligation to Parent to the event extent the Deficit exceeds the Adjustment Escrow Amount is insufficient to satisfy Amount. Upon payment of the amounts provided in this Section 1.4(d) in accordance herewith, none of the Parties may make or assert any amount due to Purchaser claim under this Section 2.04(d)(ii), no later than five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, the unpaid balance due shall be paid by Seller to Purchaser by wire transfer of immediately available funds to an account designated in writing by Purchaser, except that, in the event such shortfall is not paid within five (5) Business Days, Purchaser may elect, in its sole discretion, to satisfy such amount from the Indemnity Escrow Amount. If Purchaser elects to satisfy such shortfall from the Indemnity Escrow Amount, Seller will, within five (5) days after written notice of such election, deliver to the Escrow Agent, by wire transfer of immediately available funds, the amount withdrawn by the Escrow Agent and paid to Purchaser in accordance with the provisions of this Section 2.04(d)(ii), to be held in escrow as part of the Indemnity Escrow Account pursuant to the terms of the Escrow Agreement. Except for Seller’s indemnification obligations pursuant to Section 9.01(a)(iii) and Section 9.01(a)(iv) with respect to the Unpaid Company Transaction Expenses, and the Closing Date Indebtedness, to the extent not taken into account in the Closing Payments or the Closing Statement pursuant to this Section 2.04, the procedure set forth in this Section 2.04 for resolving disputes with respect to the Closing Statement shall be the exclusive method for resolving any disputes with respect to the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness, the Paid CapEx Amount and the Closing Date Adjusted Working Capital and any resulting proposed adjustment to the Purchase Price set forth in the Closing Statement1.4.
Appears in 1 contract
Sources: Merger Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Final Adjustment. Following the time that the amounts of the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness and the Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04 Within two (such finally determined amounts, respectively, the “Final Closing Date Cash”, the “Final Unpaid Company Transaction Expenses”, the “Final Closing Date Indebtedness”, the “Final Paid CapEx Amount” and the “Final Closing Date Adjusted Working Capital”), the Purchase Price shall (for the purposes of this Section 2.04(d)) be recalculated using the amounts of the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital in lieu of the Estimated Closing Date Cash, the Estimated Unpaid Company Transaction Expenses, the Estimated Closing Date Indebtedness, the Paid CapEx Amount and the Estimated Closing Date Adjusted Working Capital and:
(i) if (A) the result of the Purchase Price as so recalculated is greater than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such excess of (A) over (B), the “Surplus”), then Purchaser shall, within five (52) Business Days after the Final Closing Date CashStatement is finalized pursuant to clause (d), (e) or (f) of this Section 1.4:
(A) if the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant exceeds the Estimated Closing Working Capital, Buyer shall pay (or cause to this Section 2.04, (Ibe paid) pay to Seller an amount equal to such excess, or (B) if the Surplus and Closing Working Capital is less than the Estimated Closing Working Capital, Seller shall pay (IIor cause to be paid) to Buyer an amount equal to such shortfall;
(A) if the Closing Cash exceeds the Estimated Closing Cash, Buyer shall pay (or cause to be paid) to Seller an amount equal to such excess, or (B) if the Escrow Agent Closing Cash is less than the Estimated Closing Cash, Seller shall pay (or cause to release be paid) to Buyer an amount equal to such shortfall;
(iii) (A) if the Group Companies Transaction Expenses exceed the Estimated Group Companies Transaction Expenses, Seller shall pay (or cause to be paid) to Buyer an amount equal to such excess, or (B) if the Group Companies Transaction Expenses are less than the Estimated Group Companies Transaction Expenses, Buyer shall pay (or cause to be paid) to Seller an amount equal to such shortfall; and
(iv) (A) if the Closing Indebtedness exceeds the Estimated Closing Indebtedness, Seller shall pay (or cause to be paid) to Buyer an amount equal to such excess, or (B) if the Closing Indebtedness is less than the Estimated Closing Indebtedness, Buyer shall pay (or cause to be paid) to Seller an amount equal to such shortfall; provided, that all amounts in the Adjustment Escrow Account to be paid (or caused to be paid) by Buyer to Seller, in each case or by wire transfer of immediately available funds Seller to an account designated in writing by Seller; or
(ii) if (A) the result of the Purchase Price Buyer, as so recalculated is less than (B) the Estimated Purchase Price paid to Seller at Closing pursuant to Section 2.03(c)(ii) (such deficit of (A) relative to (B)applicable, the “Deficit”), then Seller shall, within five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined pursuant to this Section 2.04, (I1.4(h) cause shall be aggregated to arrive at a net amount and only a single payment shall be made by the Escrow Agent to pay to Purchaser an amount equal to the Deficit, by wire transfer of immediately available funds from the Adjustment Escrow Account to an account designated in writing by Purchaser and (II) upon such payment, will cause the Escrow Agent to release all remaining funds in the Adjustment Escrow Account, if any, to Seller by wire transfer of immediately available funds to an account designated in writing by Seller. In the event the Adjustment Escrow Amount is insufficient to satisfy any amount due to Purchaser under this Section 2.04(d)(ii), no later than five (5) Business Days after the Final Closing Date Cash, the Final Unpaid Company Transaction Expenses, the Final Closing Date Indebtedness, the Final Paid CapEx Amount and the Final Closing Date Adjusted Working Capital are finally determined parties pursuant to this Section 2.041.4(h), the unpaid balance due which payment shall be paid by from Buyer to Seller, or from Seller to Purchaser by wire transfer of immediately available funds to an account designated in writing by PurchaserBuyer, except that, in the event such shortfall is not paid within five (5) Business Days, Purchaser may elect, in its sole discretion, to satisfy such amount from the Indemnity Escrow Amountas applicable. If Purchaser elects to satisfy such shortfall from the Indemnity Escrow Amount, Seller will, within five (5) days after written notice of such election, deliver to the Escrow Agent, by wire transfer of immediately available funds, the amount withdrawn by the Escrow Agent and paid to Purchaser in accordance with the provisions of this Section 2.04(d)(ii), to be held in escrow The Purchase Price as part of the Indemnity Escrow Account pursuant to the terms of the Escrow Agreement. Except for Seller’s indemnification obligations pursuant to Section 9.01(a)(iii) and Section 9.01(a)(iv) with respect to the Unpaid Company Transaction Expenses, and the Closing Date Indebtedness, to the extent not taken into account in the Closing Payments or the Closing Statement adjusted pursuant to this Section 2.04, 1.4 is referred to as the procedure set forth in this Section 2.04 for resolving disputes with respect to the Closing Statement shall be the exclusive method for resolving any disputes with respect to the Closing Date Cash, the Unpaid Company Transaction Expenses, the Closing Date Indebtedness, the Paid CapEx Amount and the Closing Date Adjusted Working Capital and any resulting proposed adjustment to the “Purchase Price set forth in the Closing StatementPrice.”
Appears in 1 contract