Common use of Determination of Post-Closing Adjustment Clause in Contracts

Determination of Post-Closing Adjustment. (a) As promptly as reasonably practicable, but in any event within sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to the Sellers’ Representative a written statement, setting forth Purchaser’s calculation of the Aggregate Closing Consideration, together with reasonable supporting information and documentation, including Purchaser’s good faith calculation of (i) Cash, (ii) the Sellers’ Transaction Expenses, (iii) the total amount of Indebtedness outstanding as of the Closing, (iv) Working Capital and (v) the Aggregate Adjusted Closing Consideration (such statement, the “Closing Statement”). (b) If the Sellers’ Representative disagrees with Purchaser’s calculation of the Cash, Indebtedness, Working Capital and/or the unpaid Sellers’ Transaction Expenses, in each case as reflected on the Closing Statement, the Sellers’ Representative may, within forty-five (45) days after receipt of the Closing Statement, deliver a written notice (the “Dispute Notice”) to Purchaser setting forth the Sellers’ Representative’s calculation of each disputed amount (each, an “Item of Dispute”). During such forty-five (45) day period, Purchaser shall (i) provide the Sellers’ Representative with reasonable access during normal business hours upon reasonable prior notice to the books and records (including supporting data) and Representatives of Purchaser, the Barteca Entities and the Blockers (and, subject to the execution of customary access papers, their accounts and auditors) for purposes of its review of the Closing Statement, and (ii) reasonably cooperate with the Sellers’ Representative in connection with such review, including by providing, on a reasonably timely basis, all other information reasonably requested by the Sellers’ Representative in connection with its review of the Closing Statement; provided that (A) any access shall be conducted in such a manner as does not unreasonably interfere with the normal operations of Purchaser, the Blockers or the Barteca Entities and (B) without the prior written consent of Purchaser, none of the Sellers’ Representative, the Blocker Sellers or the Unitholders or any of their respective Representatives shall knowingly contact any suppliers to, or other business relations (other than the Representatives of Purchaser, the Barteca Entities and the Blockers, including their accountants and auditors) of, Purchaser or any of its Affiliates (including the Barteca Entities), in each case, in connection with the review of the Closing Statement. If Purchaser does not receive a Dispute Notice within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties. If Purchaser receives a Dispute Notice from the Sellers’ Representative within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement, Purchaser and the Sellers’ Representative shall use their respective commercially reasonable efforts to resolve each Item of Dispute, and, if any Item of Dispute is so resolved, the Closing Statement shall be modified to the extent necessary to reflect such resolution. If any Item of Dispute remains unresolved as of the thirtieth (30th) day after delivery by the Sellers’ Representative of the Dispute Notice, Purchaser and the Sellers’ Representative shall jointly retain RSM US LLP to resolve such remaining disagreement, it being understood that any item not included as an Item of Dispute in the Dispute Notice shall be conclusive and binding upon each of the Parties as set forth in the Closing Statement. If RSM US LLP is unwilling or unable to serve as the Arbiter, the Sellers’ Representative and Purchaser shall jointly select and retain a nationally recognized accounting firm that is not the auditor or independent accounting firm of Purchaser, the Barteca Entities, the Blockers or any Blocker Seller to serve as the Arbiter (RSM US LLP or such other accounting firm engaged in accordance with the terms and conditions of this Section 1.12(b), the “Arbiter”). If, within fifteen (15) days after any date the Arbiter informs the Sellers’ Representative and Purchaser that it is unable or unwilling to serve as the Arbiter, and the Sellers’ Representative and Purchaser cannot mutually agree on an alternate Person to serve as the Arbiter, either the Sellers’ Representative or Purchaser may request the American Arbitration Association to appoint as the Arbiter, within fifteen (15) days from the date of such request or as soon as practicable thereafter, a partner in a nationally recognized accounting firm that is not the auditor or independent accounting firm of any of Purchaser, the Barteca Entities, the Blockers or any Blocker Seller, who is a certified public accountant and who is independent of Purchaser, the Barteca Entities, the Blockers and the Blocker Seller to serve as the Arbiter. Purchaser and the Sellers’ Representative shall request that the Arbiter render a determination as to each unresolved Item of Dispute within thirty (30) days after its retention, and Purchaser and the Sellers’ Representative shall, and Purchaser shall cause the Blockers and the Barteca Entities and each of their respective Representatives to, reasonably cooperate with the Arbiter so as to enable it to make such determination as quickly and accurately as reasonably practicable, including by the provision by Purchaser, the Blockers and the Barteca Entities of reasonable supporting information and documentation relating to the Closing Statement or any Item of Dispute and all other items reasonably requested by the Arbiter (in each case in such a manner so as not to waive or eliminate any privilege applicable to any such information). The Arbiter shall consider only those items and amounts that were set forth on the Closing Statement and the Dispute Notice that remain unresolved by Purchaser and the Sellers’ Representative. In resolving any Item of Dispute, the Arbiter may not assign a value to any item greater than the greatest value for such item claimed by either Party, or less than the smallest value for such item claimed by either Party, on the Closing Statement or the Dispute Notice, as applicable. The Arbiter’s determination(s) shall be based upon the definitions of Cash, Sellers’ Transaction Expenses, Indebtedness and Working Capital (as applicable) included herein, and shall not be an independent review. The Arbiter’s determination of each Item of Dispute submitted to it shall be in writing, shall conform with this Section 1.12 and otherwise with terms of, including the definition set forth in, this Agreement and shall be conclusive and binding upon each of the Parties, and the Closing Statement shall be modified to the extent necessary to reflect such determination(s). The Arbiter shall allocate its fees, costs and expenses between Purchaser, on the one hand, and the Sellers’ Representative, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each such Party bears to the amount actually contested by such Party. The Cash, Sellers’ Transaction Expenses, total amount of Indebtedness outstanding as of the Closing and Working Capital, in each case as finally determined pursuant to this Section 1.12, are referred to herein as the “Actual Cash,” “Actual Sellers’ Transaction Expenses,” “Actual Indebtedness” and the “Actual Working Capital,” respectively. (c) If the Aggregate Adjusted Closing Consideration as finally determined pursuant to Section 1.12(b) is greater than the Aggregate Closing Consideration, then, within five (5) Business Days after the determination of Aggregate Adjusted Closing Consideration, (i) Purchaser shall pay an amount equal to such excess to the Paying Agent, by wire transfer of immediately available funds to the applicable account designated by the Paying Agent, and (ii) Purchaser and the Sellers’ Representative shall instruct the Escrow Agent to pay to the Paying Agent, by wire transfer of immediately available funds, the Adjustment Escrow Fund (the “Purchase Price Excess Amount”). As promptly as reasonably practicable after receipt of the Purchase Price Excess Amount, the Paying Agent shall disburse the Purchase Price Excess Amount to the Blocker Sellers and the Unitholders (other than any holder of Blocker Units) in accordance with the Distribution Waterfall. (d) If the Aggregate Adjusted Closing Consideration is less than the Aggregate Closing Consideration (such amount, the “Purchase Price Shortfall”), then, within five (5) Business Days after the determination of the Aggregate Adjusted Closing Consideration, Purchaser and the Sellers’ Representative shall instruct the Escrow Agent to (i) pay to Purchaser, by wire transfer of immediately available funds from the Adjustment Escrow Fund to a bank account designated in writing by Purchaser, an amount equal to the lesser of (A) the Purchase Price Shortfall and (B) the then remaining balance of the Adjustment Escrow Fund and (ii) following any payment pursuant to the foregoing clause (i), pay to the Paying Agent the then remaining balance of the Adjustment Escrow Fund, if any. As promptly as reasonably practicable after receipt of any such remaining balance, the Paying Agent shall disburse such remaining balance to the Blocker Sellers and the Unitholders (other than any holder of Blocker Units) in accordance with the Distribution Waterfall. The Parties agree that the Adjustment Escrow Fund shall serve as the sole and exclusive source of recovery for any amounts owed to Purchaser in connection with the final determination of the Aggregate Adjusted Closing Consideration pursuant to this Agreement. (e) The Parties agree that (i) this Section 1.12 is not intended to be used to adjust for errors, omissions or adjustments that may be found with respect to the Unaudited Financial Statements or any other balance sheet referenced in Section 2.17(a) or any inconsistencies or adjustments between the Unaudited Financial Statements or any other balance sheet referenced in Section 2.17(a) and GAAP and (ii) any payments pursuant to this Section 1.12 shall be treated as an adjustment to the applicable purchase price for Tax purposes to the maximum extent permitted by applicable Law.

Determination of Post-Closing Adjustment. (a) As promptly as reasonably practicable, but in any event within sixty No later than ninety (6090) days after the Closing Date, Purchaser Buyer shall prepare and deliver to the Sellers’ Seller Representative a written statement, statement (the “Buyer Closing Statement”) setting forth Purchaser’s (i) a calculation of the Aggregate amounts as of the Closing Considerationof (A) Cash, (B) Indebtedness of the Company and the PCs, (C) Transaction Costs and (D) Net Working Capital, and (ii) a calculation, based upon the foregoing amounts, of the Closing Cash Payment Amount and the sum of (A) such amount, less (B) the Closing Cash Payment Amount set forth in the Company Closing Statement (such sum, whether positive or negative, the “Adjustment Amount”), together with reasonable supporting information detail of each of the calculations set forth in the Buyer Closing Statement. The Buyer Closing Statement shall be prepared in a manner consistent with the terms hereof and documentationGAAP as reflected, including Purchaserand consistently applied, in the Company’s good faith calculation of (i) Cashfiscal year 2020 combined audited financial statements, and (ii) shall not otherwise include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the Sellers’ Transaction Expensestransactions contemplated by this Agreement or arising from any act, (iii) the total amount of Indebtedness outstanding as of decision or event occurring at or after the Closing, including any liabilities or obligations incurred or arranged by or on behalf of the Buyer or its Affiliates in connection with the transactions contemplated by this Agreement (iv) Working Capital and (v) including any fees payable to any financing institution). For the Aggregate Adjusted Closing Consideration (such statementavoidance of doubt, the “receipt by Buyer or its Affiliates of notice after the Closing Statement”)of an event that occurred prior to the Closing shall not prevent Buyer from including any changes in assets or liabilities resulting from the event. (b) If Following delivery of the Sellers’ Buyer Closing Statement and until the final determination of the Adjustment Amount, Buyer and its Subsidiaries (including the Company) shall (i) permit Seller Representative disagrees with Purchaser’s and its Representatives to have reasonable access, during normal business hours and upon reasonable notice, to the books and records of the Company and (ii) provide Seller Representative and its Representatives reasonable access, during normal business hours and upon reasonable notice, to the employees and advisors of Buyer and its Subsidiaries (including the Company) involved in the preparation of the Buyer Closing Statement, provided in each case that such access does not unreasonably disrupt the normal operations of Buyer or the Company. The Buyer Closing Statement shall be conclusive, final and binding on the Parties unless Seller Representative delivers to Buyer within thirty (30) days after receipt of the Buyer Closing Statement a written notice (a “Dispute Notice”) asserting objections to the calculations set forth therein and setting forth the resulting calculation of the Cash, Indebtedness, Working Capital and/or the unpaid Sellers’ Transaction Expenses, in each case as reflected Adjustment Amount based on the Closing Statementsuch objections (collectively, the Sellers’ “Disputed Items”) with reasonable supporting detail as to such Disputed Items and certifying that the Disputed Items are being disputed in good faith. (c) If a Dispute Notice is delivered to Buyer, then Buyer and Seller Representative mayshall, within for a period of forty-five (45) days after receipt following delivery of the Dispute Notice to Buyer, attempt in good faith to resolve the Disputed Items and all such discussions and communications related thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. Any Disputed Items agreed to by Buyer and Seller Representative in writing, together with any items or calculations set forth in the Buyer Closing StatementStatement not disputed or objected to by Seller Representative shall be conclusive, deliver a final and binding on the Parties absent manifest error. (d) If, at the end of the forty-five (45) day period following the delivery of the Dispute Notice, Buyer and Seller Representative have been unable to resolve the Disputed Items, Buyer or Seller Representative may, upon written notice to the other, refer all matters that remain in dispute with respect to the Dispute Notice (the “Dispute NoticeUnresolved Matters”) to Purchaser setting forth RSM US LLP, or, if RSM US LLP is unwilling to serve in such capacity, to a mutually agreeable independent accounting firm of recognized national or regional standing, which firm is not the Sellers’ Representative’s calculation regular auditing firm of each disputed amount Buyer or the Company. If Buyer and Seller Representative are unable to jointly select such independent accounting firm within ten (each, an “Item of Dispute”). During 10) days after such forty-five (45) day period, Purchaser shall Buyer, on the one hand, and Seller Representative, on the other hand, will each select an independent accounting firm of recognized national or regional standing and each such selected accounting firm will select a third independent accounting firm of recognized national or regional standing, which firm is not the regular auditing firm of Buyer or the Company; provided, however, that if either Buyer, on the one hand, or Seller Representative, on the other hand, fails to select such independent accounting firm during the ten (i10) provide day period, then the Sellers’ Representative with reasonable access during normal business hours upon reasonable prior notice independent accounting firm selected by the other Party will be the independent accounting firm selected for the purposes hereof (such selected independent accounting firm, whether pursuant to this sentence or the preceding sentence, the “Independent Accountant”). If one or more Unresolved Matters are submitted to the books Independent Accountant for resolution, Buyer and records (including supporting data) and Representatives of PurchaserSeller Representative shall enter into a customary engagement letter with, and, to the extent necessary, will waive any conflicts with, the Barteca Entities and Independent Accountant at the Blockers (and, subject time such dispute is submitted to the execution of customary access papers, their accounts Independent Accountant and auditors) for purposes of its review of the Closing Statement, and (ii) reasonably shall cooperate with the Sellers’ Representative in connection with such review, including by providing, on a reasonably timely basis, all other information reasonably requested by the Sellers’ Representative Independent Accountant in connection with its review determination pursuant to this Section 2.6. Within ten (10) Business Days after the Independent Accountant has been retained, each of Buyer and Seller Representative shall furnish, at its own expense, to the Closing Statement; provided Independent Accountant and substantially simultaneously to the other a written statement of its position with respect to each Unresolved Matter. Within five (5) Business Days after the expiration of such ten (10) Business Day period, each of Buyer and Seller Representative may deliver to the Independent Accountant its response to the other’s position on each Unresolved Matter (provided, that it delivers a copy thereof substantially simultaneously to the other). With each submission, each of Buyer and Seller Representative may also furnish to the Independent Accountant such other information and documents as it deems relevant or such information and documents as may be requested by the Independent Accountant (Aprovided, that it delivers a copy thereof substantially simultaneously to the other). The Independent Accountant may, at its discretion, conduct one or more conferences (whether in person or by teleconference or videoconference) any access concerning the disagreement and each of Buyer and Seller Representative shall have the right to present additional documents, materials and other information and to have present its Representatives at such conferences. (e) The Independent Accountant shall be conducted in such a manner as does not unreasonably interfere with the normal operations of Purchaser, the Blockers or the Barteca Entities and (B) without the prior written consent of Purchaser, none of the Sellers’ Representative, the Blocker Sellers or the Unitholders or any of their respective Representatives shall knowingly contact any suppliers to, or other business relations (other than the Representatives of Purchaser, the Barteca Entities and the Blockers, including their accountants and auditors) of, Purchaser or any of its Affiliates (including the Barteca Entities), in each case, in connection with the review of the Closing Statement. If Purchaser does not receive a Dispute Notice within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties. If Purchaser receives a Dispute Notice from the Sellers’ Representative within forty-five (45) days after receipt by the Sellers’ Representative of the Closing Statement, Purchaser and the Sellers’ Representative shall use their respective commercially reasonable efforts directed to resolve each Item of Dispute, and, if any Item of Dispute is so resolved, the Closing Statement shall be modified to the extent necessary to reflect such resolution. If any Item of Dispute remains unresolved as of the thirtieth (30th) day after delivery by the Sellers’ Representative of the Dispute Notice, Purchaser and the Sellers’ Representative shall jointly retain RSM US LLP to resolve such remaining disagreement, it being understood that any item not included as an Item of Dispute in the Dispute Notice shall be conclusive and binding upon each of the Parties as set forth in the Closing Statement. If RSM US LLP is unwilling or unable to serve as the Arbiter, the Sellers’ Representative and Purchaser shall jointly select and retain a nationally recognized accounting firm that is not the auditor or independent accounting firm of Purchaser, the Barteca Entities, the Blockers or any Blocker Seller to serve as the Arbiter (RSM US LLP or such other accounting firm engaged in accordance with the terms and conditions of this Section 1.12(b), the “Arbiter”). If, within fifteen (15) days after any date the Arbiter informs the Sellers’ Representative and Purchaser that it is unable or unwilling to serve as the Arbiterpromptly, and the Sellers’ Representative and Purchaser cannot mutually agree on an alternate Person to serve as the Arbiter, either the Sellers’ Representative or Purchaser may request the American Arbitration Association to appoint as the Arbiter, within fifteen (15) days from the date of such request or as soon as practicable thereafter, a partner in a nationally recognized accounting firm that is not the auditor or independent accounting firm of any of Purchaser, the Barteca Entities, the Blockers or any Blocker Seller, who is a certified public accountant and who is independent of Purchaser, the Barteca Entities, the Blockers and the Blocker Seller to serve as the Arbiter. Purchaser and the Sellers’ Representative shall request that the Arbiter render a determination as to each unresolved Item of Dispute event within thirty (30) days after its retentionengagement, render its decision on the Unresolved Matters (and Purchaser not on any other matter) in accordance with the terms hereof. The Independent Accountant’s determination, acting as an expert in accounting and the Sellers’ Representative shallnot as an arbitrator, and Purchaser as to each Unresolved Matter shall cause the Blockers and the Barteca Entities and be set forth in a written statement delivered to each of their respective Representatives toBuyer and Seller Representative, reasonably cooperate with which shall include the Arbiter so Independent Accountant’s (i) determination as to enable it to make such determination as quickly the calculation of each of the Unresolved Matters and accurately as reasonably practicable(ii) the resulting calculation of the Adjustment Amount, including all of which shall be conclusive, final and binding on the Parties absent manifest error. In deciding any matter, the Independent Accountant (i) shall be bound by the provision by Purchaser, the Blockers provisions of this Section 2.6(e) and the Barteca Entities of reasonable supporting information and documentation relating to the Closing Statement or any Item of Dispute and all other items reasonably requested by the Arbiter (in each case in such a manner so as not to waive or eliminate any privilege applicable to any such information). The Arbiter shall consider only those items and amounts that were set forth on the Closing Statement and the Dispute Notice that remain unresolved by Purchaser and the Sellers’ Representative. In resolving any Item of Dispute, the Arbiter ii) may not assign a value to any item greater than the greatest value for such item claimed by either Party, Buyer in the Buyer Closing Statement or by Seller Representative in the Dispute Notice or less than the smallest lowest value for such item claimed by either Party, on Buyer in the Buyer Closing Statement or by Seller Representative in the Dispute Notice, as applicable. The Arbiter’s determination(s) shall be based upon the definitions of Cash, Sellers’ Transaction Expenses, Indebtedness and Working Capital (as applicable) included herein, and shall not be an independent review. The Arbiter’s determination of each Item of Dispute submitted to it shall be in writing, shall conform with this Section 1.12 and otherwise with terms of, including the definition set forth in, this Agreement and shall be conclusive and binding upon each of the Parties, and the Closing Statement shall be modified to the extent necessary to reflect such determination(s). The Arbiter shall allocate its fees, costs and expenses between Purchaser, of the Independent Accountant shall be paid by each of Seller Representative and Buyer based on the one hand, inverse proportion of the difference between the Unresolved Matter proposed by each of them and the Sellers’ RepresentativeUnresolved Matter as determined by the Independent Accountant. For example, on if Seller Representative proposes that the other hand, based upon the percentage which the portion value of an Unresolved Matter is $100,000 and Buyer proposes that value of the contested amount not awarded to each such Party bears to Unresolved Matter is $0 and if the amount actually contested by such Party. The Cash, Sellers’ Transaction Expenses, total amount of Indebtedness outstanding as Independent Accountant ultimately determines the value of the Closing Unresolved Matter is $20,000, then the fees, costs and Working Capital, in each case as finally determined pursuant to this Section 1.12, are referred to herein as the “Actual Cash,” “Actual Sellers’ Transaction Expenses,” “Actual Indebtedness” and the “Actual Working Capital,” respectively. (c) If the Aggregate Adjusted Closing Consideration as finally determined pursuant to Section 1.12(b) is greater than the Aggregate Closing Consideration, then, within five (5) Business Days after the determination of Aggregate Adjusted Closing Consideration, (i) Purchaser shall pay an amount equal to such excess to the Paying Agent, by wire transfer of immediately available funds to the applicable account designated by the Paying Agent, and (ii) Purchaser and the Sellers’ Representative shall instruct the Escrow Agent to pay to the Paying Agent, by wire transfer of immediately available funds, the Adjustment Escrow Fund (the “Purchase Price Excess Amount”). As promptly as reasonably practicable after receipt expenses of the Purchase Price Excess Amount, Independent Accountant for determining the Paying Agent shall disburse the Purchase Price Excess Amount Unresolved Matter will be allocated 80% to the Blocker Sellers Seller Representative and the Unitholders (other than any holder of Blocker Units) in accordance with the Distribution Waterfall20% to Buyer. (d) If the Aggregate Adjusted Closing Consideration is less than the Aggregate Closing Consideration (such amount, the “Purchase Price Shortfall”), then, within five (5) Business Days after the determination of the Aggregate Adjusted Closing Consideration, Purchaser and the Sellers’ Representative shall instruct the Escrow Agent to (i) pay to Purchaser, by wire transfer of immediately available funds from the Adjustment Escrow Fund to a bank account designated in writing by Purchaser, an amount equal to the lesser of (A) the Purchase Price Shortfall and (B) the then remaining balance of the Adjustment Escrow Fund and (ii) following any payment pursuant to the foregoing clause (i), pay to the Paying Agent the then remaining balance of the Adjustment Escrow Fund, if any. As promptly as reasonably practicable after receipt of any such remaining balance, the Paying Agent shall disburse such remaining balance to the Blocker Sellers and the Unitholders (other than any holder of Blocker Units) in accordance with the Distribution Waterfall. The Parties agree that the Adjustment Escrow Fund shall serve as the sole and exclusive source of recovery for any amounts owed to Purchaser in connection with the final determination of the Aggregate Adjusted Closing Consideration pursuant to this Agreement. (e) The Parties agree that (i) this Section 1.12 is not intended to be used to adjust for errors, omissions or adjustments that may be found with respect to the Unaudited Financial Statements or any other balance sheet referenced in Section 2.17(a) or any inconsistencies or adjustments between the Unaudited Financial Statements or any other balance sheet referenced in Section 2.17(a) and GAAP and (ii) any payments pursuant to this Section 1.12 shall be treated as an adjustment to the applicable purchase price for Tax purposes to the maximum extent permitted by applicable Law.