Common use of Final Purchase Price Adjustments Clause in Contracts

Final Purchase Price Adjustments. (a) As soon as reasonably practicable following the Closing Date, but in no event more than sixty (60) days after the Closing Date, Buyer shall cause to be prepared and delivered to Seller an unaudited balance sheet of Seller as of the Closing Date substantially in the same form as the Balance Sheet (the “Closing Balance Sheet”), a statement of Working Capital of Seller as of the Closing Date (the “Working Capital Statement”) and a statement of the Acquired Cash as of the Closing Date (the “Final Acquired Cash Statement”). The Closing Balance Sheet, Working Capital Statement and Final Acquired Cash Statement shall be prepared in accordance with the Accounting Procedures, shall be calculated in accordance with the Working Capital calculation example or Acquired Cash calculation, as applicable, set forth on Section 2.3 of the Seller Disclosure Letter and shall incorporate the results of the meter readings, cash count, ▇▇▇▇▇▇ drop and slot system report, as applicable, as provided in Section 2.3(c). The Working Capital Statement will set forth, in reasonable detail and based on the Closing Balance Sheet, the amount of Working Capital of Seller as of the Closing Date (the “Closing Date Working Capital”). Seller and Buyer shall bear their own expenses in the preparation and review of the Closing Balance Sheet, Working Capital Statement and Final Acquired Cash Statement. Subject to applicable Law, Seller will use commercially reasonable efforts to cooperate with Buyer in connection with the preparation of the Final Acquired Cash Statement, the Closing Balance Sheet and Working Capital Statement and the calculation of Closing Date Working Capital, and will provide Buyer with reasonable access to any of Seller’s records not otherwise available to Buyer as a result of the transactions contemplated by this Agreement, to the extent necessary for the preparation of the Final Acquired Cash Statement, Working Capital Statement and the calculation of Closing Date Working Capital. (b) Notwithstanding any provision in this Article II to the contrary, in preparing the Closing Balance Sheet and Working Capital Statement, the following provisions shall be observed: (i) As of the Closing, all real and personal property Taxes and similar ad valorem obligations (“Property Taxes”) related to the Purchased Assets for Tax periods beginning before and ending after the Closing Date shall be prorated as between Seller and Buyer separately on a per diem basis as of the Closing Date using the latest available rates and assessments, and Seller shall be responsible for Seller’s proportionate share of such Property Taxes (which shall be determined on a per diem basis from the beginning of the relevant Tax period through the day prior to the Closing Date) (the “Seller Property Tax Amount”) and Buyer being responsible for the remainder of such Property Taxes; provided, however, that notwithstanding the terms of this Agreement, the Taxes described above shall be reprorated on a per diem basis when actual rates, values and assessments are finally determined, with Seller being responsible for all such amounts applicable to periods prior to the Closing Date and Buyer being responsible for all such amounts applicable to periods from and after the Closing Date (and payments shall be made between Buyer and Seller to effectuate such responsibility). Only the Seller Property Tax Amount shall be reflected on the Working Capital Statement as a Current Liability. (ii) Utility meters (which shall include water, gas, electric, sewer, fuel and the like) shall be read, to the extent such utility is metered and the utility company will do so, during the daylight hours on the Closing Date (or as near as practicable prior thereto), with only charges attributable to the period prior to the Closing Date reflected on the Working Capital Statement as Current Liabilities. Prepaid utility charges shall be prorated on a per diem basis based upon the last available invoice therefor as of the Closing Date, with only amounts attributable to periods on and after the Closing Date reflected on the Working Capital Statement as Current Assets (which shall be determined on a per diem basis from the Closing to the end of the relevant period). Charges for utilities that are unmetered, or the meters for which have not been read on the Closing Date, will be prorated as of the Transfer Time, with only charges attributable to the period prior to the Closing Date reflected on the Working Capital Statement as Current Liabilities and with only pre-payments attributable to periods on or after the Closing Date reflected as Current Assets. (c) If Seller shall have any disagreement with the Final Acquired Cash Statement, Closing Balance Sheet and Closing Date Working Capital or any element of the Working Capital Statement relevant thereto, it shall, on or prior to twenty (20) Business Days after its receipt of the Final Acquired Cash Statement, Closing Balance Sheet and Working Capital Statement, notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement. The notice of disagreement shall only include disagreements based on the Final Acquired Cash Statement or Closing Date Working Capital not being calculated in accordance with Section 2.4 and the definitions contained in this Agreement. In connection therewith and subject to applicable Law, Buyer will provide Seller reasonable access to all of Buyer’s and the Property’s records not otherwise available to Seller as a result of the transactions contemplated by this Agreement, to the extent Seller deems necessary for Seller’s review of the Final Acquired Cash Statement, Closing Balance Sheet and the Working Capital Statement and the determination of Closing Date Working Capital. If Seller does not provide such notice of disagreement within such twenty (20) Business Day period, Seller shall be deemed to have accepted the Final Acquired Cash Statement, Closing Balance Sheet and the Working Capital Statement and the determination of the Closing Date Working Capital delivered by Buyer and such determination shall be final, binding and conclusive for purposes of this Agreement. Any purported failure by Seller to provide the aforementioned “reasonable detail” shall not be used as the basis for an assertion by Buyer that Seller’s notice of disagreement was not timely delivered. If any such notice of disagreement is timely provided, Buyer and Seller, in conjunction with their respective independent accounting firms, shall use commercially reasonable efforts for a period of twenty (20) Business Days from the date of Seller’s notice of disagreement (or such longer period as they may mutually agree) to resolve any disagreements with respect to the Final Acquired Cash Statement, Closing Balance Sheet, Closing Date Working Capital and Working Capital Statement, as applicable. If, at the end of such period, they are unable to resolve such disagreements, then an independent accounting firm of recognized national standing with no existing relationship with either party that is mutually agreed upon by Buyer and Seller (the “Auditor”) shall resolve any remaining disagreements. The Auditor shall determine as promptly as practicable (but in any event within sixty (60) days after its engagement), only with respect to the disagreements submitted to the Auditor, whether the Final Acquired Cash Statement, Closing Balance Sheet, Closing Date Working Capital and the Working Capital Statement were prepared in accordance with the standards set forth in this Agreement and, only with respect to the disagreements submitted to the Auditor, whether and to what extent (if any) the Final Acquired Cash Statement, Closing Balance Sheet, Closing Date Working Capital and Working Capital Statement requires adjustment. The Auditor shall promptly deliver to Buyer and Seller its determination in writing, which determination shall be made subject to the definitions and principles set forth in this Agreement, and shall be (i) consistent with either the position of Seller or Buyer or (ii) between the positions of Seller and Buyer. The fees and expenses of the Auditor shall be borne by Buyer and Seller as determined by the Auditor based on the inverse of the percentage that the Auditor’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to it. For purposes of illustration only, if there were an aggregate of $100 of items in dispute and if the final written determination of the Auditor states that $80 of such items are in accordance with Seller’s position and $20 of such items are in accordance with Buyer’s position, Seller would bear 20% of the Auditor’s costs and expenses, on the one hand, and Buyer would bear 80% of such costs and expenses, on the other hand. The determination of the Auditor shall be final, binding and conclusive for purposes of this Agreement and not subject to any further recourse by Buyer or Seller under any provision hereof, including Article IX, and judgment may be entered thereon in a court of competent jurisdiction. The date on which the Closing Date Working Capital is finally determined in accordance with this Section 2.4 is hereinafter referred to as the “Working Capital Determination Date.” The date on which the Final Acquired Cash Statement is finally determined in accordance with this Section 2.4 is hereinafter referred to as the “Acquired Cash Determination Date.” (d) Within ten (10) Business Days after the Working Capital Determination Date, the absolute value of the amount by which the Closing Date Working Capital (as finally determined in accordance with this Section 2.4) is less than or greater than the Pre-Closing Working Capital Estimate (the “Final Working Capital Adjustment”), plus accrued interest as provided herein, shall be paid in cash by wire transfer of immediately available funds from Buyer to Seller (if such Closing Date Working Capital is greater than the Pre-Closing Working Capital Estimate), or from Seller to Buyer (if such Closing Date Working Capital is less than the Pre-Closing Working Capital Estimate). (e) Within ten (10) Business Days after the Acquired Cash Determination Date, the absolute value of the amount by which the Final Acquired Cash Amount (as finally determined in accordance with this Section 2.4) is less than or greater than the Estimated Acquired Cash Amount (the “Final Acquired Cash Adjustment”), plus accrued interest as provided herein, shall be paid in cash by wire transfer of immediately available funds from Buyer to Seller (if such Final Acquired Cash Amount is greater than the Estimated Acquired Cash Amount), or from Seller to Buyer (if such Final Acquired Cash Amount is less than Estimated Acquired Cash Amount). (f) The amounts so payable to the other party pursuant to Sections 2.4(d) or (e) shall accrue simple interest on the unpaid balance from and after the Closing Date until such balance is paid in full (but no interest shall be payable for the day on which such payment is made) at a per annum rate equal to the prime rate as of the Business Day immediately preceding the Closing Date, as published in The Wall Street Journal.