Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price. (b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review. (c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive. (d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities. (e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it. (f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Basic Energy Services, Inc.)
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety one hundred and twenty (90120) calendar days after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation the actual amounts of the adjustments Adjustments to the Purchase Price required by Paragraph 6 and the resulting final purchase price (the “Final Purchase Price”). As soon as reasonably practicable, but in accordance with Section 2.04no event later than thirty (30) days after Buyer receives the Final Settlement Statement, Buyer may deliver to Seller a written report containing any changes that Buyer proposes to be made to such statement. If Buyer fails to timely deliver the written report to Seller containing changes Buyer proposes to be made to the Final Settlement Statement, the statement as delivered by Seller will be deemed to be correct and will be final and binding on the Parties and not subject to further audit or arbitration. If Buyer delivers a written report to Seller containing any proposed changes, as soon as reasonably practicable, but in no event later than fifteen (15) days after Seller receives Buyer’s written report, the Parties shall meet and undertake to agree on the final Adjustments to the Final Settlement Statement. If the Parties fail to agree on the final Adjustments within the fifteen (15) day period, either Party may submit the disputed items to the Accounting Referee (as defined below) for resolution. The Final Settlement Statement Parties shall request the Accounting Referee to resolve the disputes within twenty (20) days after having the relevant materials submitted for review. The decision of the Accounting Referee will be prepared in accordance with this Agreement binding on and on a basis consistent non-appealable by the Parties. The fees and expenses associated with the preparation of Accounting Referee will be borne equally by the Closing Statement Parties. Any amounts owed by one Party to the other as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery a result of the Final Settlement Statement, Sellers shall afford Buyer together with interest on such amount from (and including) Closing to (and excluding) the opportunity to examine date of payment at the Final Settlement Statement and Sellers’ calculation prime rate, will be paid within five (5) business days after the date when the amounts are agreed upon by the Parties or the Parties receive a decision of the Adjusted Purchase PriceAccounting Referee, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth Adjustments included in the Final Settlement Statement which are not objected to in the Objection Notice shall will be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on between the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error not subject to further audit or fraud) and arbitration. “Accounting Referee” means a nationally recognized accounting firm mutually agreed upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and BuyerParties, respectively (together with any experts such that, by way of example, if the amount firm may require in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)order to settle a particular dispute.
Appears in 2 contracts
Sources: Agreement to Purchase Oil and Gas Interests (Sanchez Midstream Partners LP), Agreement to Purchase Oil and Gas Interests (Sanchez Midstream Partners LP)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 120 days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of will be prepared by Seller, based on actual income and expenses during the Interim Period and which takes into account all final adjustments made to the Purchase Price in accordance with Section 2.04and shows the resulting final Purchase Price (“Final Price”). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing Statement amounts required by this Agreement. As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery in any event within 60 days, after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer either agree in writing with the opportunity Final Settlement Statement or return a written report containing any proposed changes to examine the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice reasons therefor (the “Objection Dispute Notice”) of Buyer’s objections to ). If the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in is mutually agreed upon by Seller and Buyer, the Objection Notice Final Price shall be deemed final and conclusive.
(d) If Buyer delivers paid according thereto. For the Objection Notice satisfying avoidance of doubt, any payment owing under this Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer 3.6 shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amountsIndemnification Threshold or Indemnification Cap contained in Section 13.5. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may Any difference in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolution, (i) each of Buyer Preliminary Settlement Statement and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Final Price shall be paid by and apportioned between the owing party without interest within ten days of (i) the Final Settlement Statement or (ii) if the Final Price is disputed, resolution of the Final Price, to the owed party. All amounts paid pursuant to this Section 3.6 shall be delivered in United States currency by wire transfer of immediately available funds to the account specified in writing by the relevant party.
(b) If Seller fails to prepare the Final Settlement Statement within such 120-day period, it shall pay to Buyer and Sellers based interest at the rate of 10% per annum from the 121st day after the Closing until preparation of such Final Settlement Statement on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of examplenet amount, if any, owing to Buyer as shown on such Final Settlement Statement.
(c) If Buyer fails to either agree with the amount in dispute is $100 and it is resolved $70 in favor Final Settlement Statement or return a Dispute Notice within 60 days of Buyer and $30 in favor of Sellers, then Sellers would bear 70% its receipt of the Audit Fees and Buyer would bear 30Final Settlement Statement, it shall pay to Seller interest at the rate of 10% per annum from the 61st day after receipt of the Audit Fees)Final Settlement Statement on the net amount, if any, owing to Seller as shown on such Final Settlement Statement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Houston Exploration Co), Purchase and Sale Agreement (Houston Exploration Co)
Final Settlement Statement. On or before one hundred and twenty (a120) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of will be prepared in good faith by Seller based on actual income and expenses during the period from and after the Effective Time until Closing and which takes into account all final adjustments made to the Purchase Price and shows the resulting final Purchase Price (the “Final Price”) (including all calculations related to the determination thereof) and which shall include reasonably sufficient documentation (to the extent available to Seller or otherwise in accordance with Section 2.04Seller’s or any of its Affiliate’s or its or their respective Representative’s possession or control) to support each such adjustment and related calculation. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
amounts required by this Agreement. Not later than thirty (b30) Following the delivery days after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer the opportunity return to examine Seller a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation a reasonable explanation of any such changes and the reasons therefor (based upon what Buyer actually has knowledge of at such time) (the “Dispute Notice”). In furtherance of the Adjusted Purchase Priceforegoing, Seller shall use commercially reasonable efforts to provide Buyer and its Representatives with (a) any information or data reasonably requested to the extent such supporting schedules information or data is within Seller’s or any of its Affiliates’ possession or control and analyses (b) access to Seller’s Representatives during normal business hours and as are Buyer may reasonably necessary and appropriate request in connection with its review of such reviewstatement or supporting documentation. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of If the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final is mutually agreed upon by Seller and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) aboveBuyer, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in and the Objection NoticeFinal Price, which resolution shall be final and binding on the Parties. Any difference in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolution, (i) each of Buyer Preliminary Settlement Statement and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Final Price shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount owing Party within ten (10) days of such agreement to the owed Party. All amounts paid pursuant to this Section 3.5 shall be delivered in dispute and United States currency by wire transfer of immediately available funds to the relative recovery as determined account specified in writing by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)relevant Party.
Appears in 1 contract
Final Settlement Statement. (aThe Parties hereby amend the first sentence of Section 2.4(c) As soon as practical and, in any event, no of the Purchase Agreement by replacing it with the following: “Not later than ninety (90) calendar days after following the Closing Date, Sellers Buyer shall prepare and deliver to Buyer Seller a statement statement, in substantially the form attached hereto as Exhibit F and attaching reasonable supporting schedules, working papers and all other relevant details in Buyer’s possession to enable a review thereof by Seller (the “Final Settlement Statement”) ), setting forth Sellers’ calculation Buyer’s good faith estimate of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ final calculation of the Adjusted Purchase Price (which Objection Notice determined in order to be valid must contain a statement describing in reasonable detail accordance with the items objected to, Accounting Principles and showing the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statementeach adjustment under Section 2.4(a), then except with respect to Inventory which shall be separately addressed in accordance with Exhibit B, and specifically including any Seller Costs which shall be a reduction to the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In additionPrice; provided, any of Sellers’ calculations of however, that to the Adjusted Purchase Price as set forth in the Final Settlement Statement which extent all Seller Costs are not objected to in reasonably ascertained and/or the Objection Notice shall be deemed final and conclusive.
(d) If testing, repairs and/or replacements or other matters relating thereto are not completed by Buyer delivers and/or the Objection Notice satisfying Section 2.06(c) above, Company Group Members within such thirty ninety (30)-day period90) day period despite Buyer using its commercially reasonable efforts to complete such matters within such timeframe, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15i) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by bifurcated, such that the Referee except to the extent affected by resolution Seller Costs not yet known as of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed ninety (90) day period shall be a national or regional accounting firm with no prior material relationships with excluded from the form of Final Settlement Statement to be provided within such ninety (90) day period, and (ii) Buyer or Sellers or their respective Affiliates shall prepare and shall have experience deliver to Seller the Final Settlement Statement inclusive of such Seller Costs not included in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, clause (i) each above by no later than one hundred twenty (120) following the Closing Date. The Parties hereby further amend Section 2.4(c) of Buyer and Sellers shall furnish the Purchase Agreement by adding the following sentence to the Referee such workpapers and other documents and information relating end of Section 2.4(c): “Notwithstanding anything to the contrary herein, in the event of a dispute between the Parties with respect to any of the Seller Costs, including the amount thereof, such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountantsmatter(s) and will shall not be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered resolved by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase PriceAccounting Firm, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, but rather shall be made resolved in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit FeesSection 10.3.”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety thirty (9030) calendar days after the Closing DateClosing, Sellers shall Seller will prepare and deliver to Buyer a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ (i) each adjustment or payment that was not finally determined as of the Closing, (ii) the calculation of such adjustment and, (iii) the adjustments to the final Initial Purchase Price in accordance with Section 2.04(the “Final Initial Purchase Price”). The No later than ten calendar days after receipt of Seller’s proposed Final Settlement Statement Statement, Buyer shall be prepared in accordance with this Agreement and on deliver to Seller a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of written report containing any changes that Buyer proposes to make to the Final Settlement Statement, Sellers shall afford Buyer the opportunity . Buyer’s failure to examine deliver to Seller a written report detailing proposed changes to the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers by that date shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested be deemed an acceptance by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement as submitted by Seller. The Parties shall agree with respect to the changes proposed by Buyer, Buyer has not delivered to Sellers written notice (if any, no later than twenty calendar days after the Buyer’s receipt of Seller’s proposed Final Settlement Statement. The date upon which such agreement is reached or upon which the Final Purchase Price is established shall be herein called the “Objection Notice”) of Buyer’s objections to Final Settlement Date.” If the Final Settlement Statement or Sellers’ calculation of the Adjusted Initial Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail is more than the items objected toClosing Amount, Buyer shall pay Seller the basis amount of such objections and Buyer’s calculation difference. If the Final Initial Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of the amount(s) for the items objected to that Buyer asserts should such difference. Any payment by a Party shall be used for purposes made by wire transfer of immediately available funds within five calendar days of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusiveDate. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then Any adjustments requiring additional payment by either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement Seller shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall also be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)same manner.
Appears in 1 contract
Sources: Purchase and Sale Agreement (PetroHunter Energy Corp)
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar the date that is 120 days after the Closing Date, Sellers shall Seller will in good faith prepare and deliver to Buyer a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ (1) each adjustment or payment that was not finally determined as of Closing, (2) the calculation of such adjustment, and (3) the final adjustments to the Purchase Price in accordance with Cash Consideration (the Cash Consideration subject to such adjustments as finally determined pursuant to this Section 2.0413.1 is the “Final Cash Consideration”). The Final Settlement Statement Seller shall provide Buyer access to such of Seller’s records as may be prepared in accordance with this Agreement and reasonably necessary to verify the post-Closing adjustments shown on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement. No later than 20 days after receipt of Seller’s proposed Final Settlement Statement, Sellers Buyer shall afford deliver to Seller a written report (with supporting documentation including all relevant invoices with specific references and other information reasonably requested by Seller) containing any changes that Buyer proposes to make to the opportunity final adjustments to examine the Cash Consideration proposed in the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewdelivered by Seller. Sellers shall cooperate with Buyer Any changes not so specified in such examination, including responding written report from Buyer shall be deemed waived and Seller’s determinations with respect to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with all such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement to Buyer, Buyer has that are not delivered to Sellers addressed specifically in such written notice (the “Objection Notice”) of from Buyer shall prevail. Buyer’s objections failure to deliver to Seller a written report detailing proposed changes to the Final Settlement Statement or Sellers’ calculation of by the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis end of such objections and Buyer’s calculation of the amount(s) for the items objected to that 20-day period shall be deemed an acceptance by Buyer asserts should be used for purposes of the Final Settlement Statement)Statement as submitted by Seller and shall not be subject to further {JK01396073.28 } Dispute, then audit or arbitration. If Seller disagrees with any changes proposed by Buyer, the Adjusted Purchase Price as set forth in such Final Settlement Statement Parties shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor cooperate in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar any such Dispute no later than 50 days from the date of after Seller’s delivery of the Objection Noticeproposed Final Settlement Statement. The date upon which such Disputes are resolved or upon which the Final Cash Consideration is established is the “Final Settlement Date.” If the Final Cash Consideration (net of the Holdback Amount) is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If at the end Final Cash Consideration (net of the Holdback Amount) is less than the Closing Amount, Seller shall pay to Buyer the amount of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require difference. Any payment by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10a Party under this Section 13.1(a) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution made by wire transfer of disputed amounts set forth in immediately available funds within five days of the Final Settlement Statement that have been identified by Buyer Date. Subject to and except for the rights and obligations of the Parties described in Section 13.1(b), Section 9.3, or Article XIV (with respect to any obligation related to Taxes), the Objection Notice, which resolution shall be adjustments set out in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution final settlement of the disputed amounts. In connection Parties with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition respect to all matters addressed in such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesFinal Settlement Statement.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Earthstone Energy Inc)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 120 days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting will be prepared by Seller in accordance with GAAP, that shall set forth Sellers’ the Adjusted Purchase Price, reflecting each adjustment made in accordance with this Agreement as of the date of preparation of such Final Settlement Statement and the calculation of the adjustments used to determine such amount and reasonably sufficient documentation, to the extent in Seller's possession, to support such adjustment and the related calculation based on actual income and expenses and which takes into account all final adjustments made to the Purchase Price in accordance with Section 2.04and shows the resulting final Purchase Price (“Final Price”). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing amounts required by this Agreement. Purchaser shall have the right to audit the Final Settlement Statement and as described in Section 2.04(d)soon as practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery in any event within 30 days, after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer either agree in writing with the opportunity Final Settlement Statement or return a written report containing any proposed changes to examine the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice reasons therefor (the “Objection Dispute Notice”) of Buyer’s objections to ). If the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to is mutually agreed upon by Seller and Buyer, the net unpaid amount of the Final Price shall be paid according thereto. In addition, in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections event of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Dispute Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution applicable party will make payment in respect of disputed amounts set forth in all undisputed portions of the Final Settlement Statement that have been identified by Buyer in Statement. For the Objection Noticeavoidance of doubt, which resolution any payment owing under this Section 3.6 shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall not be subject to determination by the Referee except to the extent affected by resolution of the disputed amountsIndemnification Threshold or Indemnification Cap contained in Section 13.5. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may Any difference in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolution, (i) each of Buyer Preliminary Settlement Statement and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Final Price shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount owing party without interest within ten days of (i) the Final Settlement Statement or (ii) if the Final Price is disputed, resolution of the Final Price, to the owed party. All amounts paid pursuant to this Section 3.6 shall be delivered in dispute and United States currency by wire transfer of immediately available funds to the relative recovery as determined account specified in writing by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)relevant party within three Business Days.
Appears in 1 contract
Final Settlement Statement. (aA) As soon as practical and, in any event, no later than ninety (90) calendar On or before the Business Day following one hundred eighty days after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04). The Final Settlement Statement shall be prepared in accordance with this include: Chevron U.S.A. Inc./ ASPA GUG Asset Sale and Purchase Agreement Dom Ltr (Rev4 May 2009))
(1) Any additional adjustments under Section 2.3 and on a basis consistent with any changes to the preparation of the Closing Statement as described in Section 2.04(d), and shall Accounting Adjustments that were set forth Sellers’ in the Preliminary Settlement Statement, showing the calculation of the Adjusted Purchase Pricesuch changes.
(b2) Following As a set-off, any resulting amount due to Buyer against any amount or sum that Buyer may otherwise owe to Seller under the delivery terms of this Agreement or any other agreement between Buyer and Seller.
(3) Copies of Third Party vendor invoices in excess of US$10,000.00 each, or other evidence of expenses agreed to by Buyer and Seller.
(B) Within sixty days of receipt of the Final Settlement Statement, Sellers Buyer shall afford deliver to Seller a written notice, either agreeing to the amounts due as set out in the Final Settlement Statement or setting out any changes that Buyer proposes be made to the opportunity Final Settlement Statement. If no written notice is delivered within that period, Buyer shall be deemed to examine have agreed to the Final Settlement Statement and Sellers’ calculation of each Party shall pay in accordance with Section 11.1(C). If such a written notice is delivered within that period that proposes changes to the Adjusted Purchase PriceFinal Settlement Statement, and such supporting schedules and analyses as are reasonably necessary and appropriate then the following shall apply:
(1) Any amount which is not subject to dispute shall be paid in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding accordance to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such reviewSection 11.1(C).
(c2) If, within thirty (30) calendar days following delivery of the Final Settlement Statement The Parties shall negotiate in good faith and use their reasonable endeavors to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections agree upon any disputed amounts due pursuant to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and no later than thirty days after Buyer’s calculation submission of its written notice to Seller.
(3) In the amount(s) for event the items objected Parties fail to that Buyer asserts should be used for purposes agree upon the amounts due within thirty days after Buyer’s submission of the Final Settlement Statement)its written notice to Seller, then the Adjusted Purchase Price as set forth in such Final Settlement Statement disputed amounts shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected resolved pursuant to in the Objection Notice shall be deemed final and conclusiveSection 0.
(dC) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for The payment owed by a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice Party to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating Party pursuant to the Final Settlement Statement shall be subject to determination made within a period of ten Business Days after agreement by the Referee except Parties or determination pursuant to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Refereethis Section 11.1, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, case may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesbe.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Daybreak Oil & Gas Inc)
Final Settlement Statement. (a) As soon as practical andpractical, in any event, but no later than ninety sixty (9060) calendar days after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer a statement (setting forth, in reasonable detail, the “Final Settlement Statement”) setting forth Sellers’ calculation of the proposed adjustments to the Purchase Price as set forth in accordance with Section 2.04. The Final Settlement Statement shall be 2.2 above, certifying that such statement has been prepared in accordance with this Agreement customary accounting principles used in the oil and gas industry. During the period of sixty (60) calendar days after Buyer’s receipt of such statement, Buyer shall be permitted to review the working papers of Seller relating to such statement and all documentation with respect to the adjustments proposed thereby and Buyer shall give reasonable access to Seller’s employees and representatives, who shall respond promptly to inquiries of Buyer. The statement and the adjustments proposed thereby shall become final and binding on a basis consistent the parties the sixtieth (60th) calendar day after Buyer’s receipt of such statement, unless Buyer gives Seller written notice of Buyer’s disagreement with such statement and the preparation proposed adjustments on or prior to such date. Such written notice shall be signed by Buyer, shall state the nature of the Closing Statement as described proposed disagreement in Section 2.04(d), reasonable detail and shall set forth Sellers’ calculation state the adjustments that Buyer believes are correct. If such written notice is given, the statement (as adjusted pursuant to this paragraph) shall become final and binding on the parties: (a) the date on which Buyer and Seller resolve in writing any disagreements and agree on the form of the Adjusted Purchase Price.
a Final Settlement Statement; or (b) Following the date that the disagreement is resolved in writing by ▇.▇. ▇▇▇▇▇ & Associates, Inc. (“▇.▇. ▇▇▇▇▇”), which produces a Final Settlement Statement. During the thirty (30) calendar day period following the delivery of the Final Settlement Statementwritten notice, Sellers Buyer and Seller shall afford seek to resolve in good faith and by mutual agreement any disagreements. At the end of such thirty (30) day period, if Buyer and Seller have not been able to resolve such disagreements, such disagreements shall be submitted to ▇.▇. ▇▇▇▇▇ for resolution. Buyer and Seller shall instruct ▇.▇. ▇▇▇▇▇ that ▇.▇. ▇▇▇▇▇ may only consider the opportunity disagreements then existing between Buyer and Seller with respect to examine the Final Settlement Statement proposed adjustments and Sellers’ calculation of shall, to the Adjusted Purchase Priceextent possible, and resolve such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, disagreements within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusivedays. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Either Buyer or Sellers Seller may require by written notice submit to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP such written submissions as Buyer or Seller may determine to explain their position with respect to such other independent accounting firm as may disagreements. The costs, fees and expenses of this process shall be selected jointly shared equally by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”)Seller. The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in If the Final Settlement Statement that have been identified by reflects an amount due from Seller to Buyer, then Seller shall pay such amount to Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to within five (5) calendar days. If the Final Settlement Statement shall be subject reflects an amount due from Buyer to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitratorSeller, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court shall pay such amount to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
Seller within five (e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (305) calendar days after the objections that remain in dispute are submitted to itdays.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 120 days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of will be prepared by Seller’s Representative based on actual income and expenses during the period from and after the Effective Time until Closing and which takes into account all final adjustments made to the Purchase Price and shows the resulting final Adjusted Purchase Price. Buyer shall cooperate with Seller’s Representative and use its commercially reasonable efforts to promptly furnish to Seller’s Representative all information in accordance with Section 2.04Buyer’s possession relevant to preparation of the Final Settlement Statement upon written request. The Final Settlement Statement shall set forth the actual proration of amounts as may be prepared in accordance with required by this Agreement and on a basis consistent with Agreement. The Final Settlement Statement shall also set forth the preparation Seller’s Representative’s allocation of the Closing Statement Final Adjusted Amount among Sellers, and, if needed, shall provide wiring instructions for the Seller’s Representative. As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery in any event within 45 days after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer the opportunity return to examine Seller’s Representative a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the reasons therefor (the “Dispute Notice”), which Dispute Notice, for the avoidance of doubt, shall not challenge or address any allocation of the Adjusted Purchase Price, and Price among the Sellers that was proposed by the Seller’s Representative. Buyer’s failure to deliver to Seller’s Representative a Dispute Notice detailing proposed changes to the Final Settlement Statement by such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers date shall cooperate with Buyer in such examination, including responding be deemed to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested be an acceptance by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyerby Seller’s objections Representative and any changes to the Final Settlement Statement as initially prepared by Seller’s Representative that are proposed or Sellers’ calculation requested by Buyer and not included in the Dispute Notice shall be deemed waived, and Seller’s Representative’s determinations with respect to all such adjustments in the Final Settlement Statement that are not addressed in the Dispute Notice shall prevail. Upon delivery of a Dispute Notice, Buyer and the Seller’s Representative will promptly meet to discuss the contents thereof and attempt to come to agreement upon the disputed items contained therein (other than any allocation of the Adjusted Purchase Price (among the Sellers, which Objection Notice in order to allocation shall be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation sole purview of the amount(s) for Seller’s Representative). If the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the final Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers is mutually agreed upon by Seller’s Representative and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice deemed agreed pursuant to the other that foregoing (or determined by the remaining objections in dispute be submitted for resolution Accounting Arbitrator pursuant to the DallasSection 3.6), Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified (except, for the avoidance of doubt, as it relates to any adjustments for Asset Taxes), such final Adjusted Purchase Price as agreed by the Seller’s Representative and the Buyer in (or as determined by the Objection NoticeAccounting Arbitrator) and such allocation among Sellers (as agreed by the Seller’s Representative) (collectively, which resolution the “Final Price”), shall be in accordance with this Agreement final and no other matter relating to binding on the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesParties.
(eb) The Referee shall determine such items of the calculation of Any difference in the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolutionPreliminary Settlement Statement and the Final Price (such amount, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit FeesFinal Adjustment Amount”) shall be paid as follows:
(i) If the Final Adjustment Amount is owed by and apportioned between Buyer and Sellers based to Sellers, then, on or before the aggregate dollar amount in dispute and the relative recovery as determined date that is 10 days following agreement or deemed agreement (or determination by the Referee Accounting Arbitrator, as applicable) (such date, the “Final Payment Date”), the Buyer shall pay the applicable amount to the Seller’s Representative, in accordance with the applicable allocation agreed to (or determined) as part of the Final Price. For the avoidance of doubt, all amounts owing to Sellers and from Buyer pursuant to this Section 3.5 shall be payable to the Seller’s Representative as payment agent for the Sellers, to the accounts provided in writing by such Seller’s Representative in the Final Settlement Statement, which shall in turn be distributed by the Seller’s Representative to the Sellers as provided in Section 2.4.
(ii) If the Final Adjustment Amount is owed by Sellers to Buyer, respectively then, on or before the Final Payment Date, the Seller’s Representative (for any such thatSeller that is required to pay Buyer pursuant to this Section 3.5(b)(ii)) shall pay Buyer the Final Adjustment Amount.
(iii) In addition, on or before the Final Payment Date, each Seller shall transfer to Buyer all Suspense Funds held by way such Seller.
(iv) All amounts paid or transferred pursuant to this Section 3.5 shall be delivered in United States currency by wire transfer of exampleimmediately available funds to the account or accounts specified in writing by Buyer or the Seller’s Representative, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)as applicable.
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical andAfter the Closing Date, Seller ---------------------------- shall prepare, in any eventaccordance with this Agreement, a statement (the "Final Settlement Statement"), a copy of which shall be delivered by Seller to Buyer no later than ninety one hundred twenty (90120) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ each adjustment to the Consideration necessary in accordance herewith and showing the calculation of the such adjustments to the Purchase Price in accordance with Section 2.043.a. The Final Settlement Statement hereof. Buyer shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
have forty-five (b45) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery after receipt of the Final Settlement Statement to Buyer, Buyer has not delivered review such statement and to Sellers provide written notice (the “Objection Notice”) to Seller of Buyer’s objections 's objection to any item on the Final Settlement Statement or Sellers’ calculation of statement. Buyer's notice shall clearly identify the Adjusted Purchase Price (which Objection Notice in order item(s) objected to be valid must contain a statement describing in reasonable detail and the items objected toreasons and support for the objection(s). If Buyer does not provide written objection(s) within the 45-day period, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final correct and conclusiveshall not be subject to further adjustment. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers provides written objection(s) within the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day 45-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except deemed correct as to the extent affected by resolution items with respect to which no objections were made. Buyer and Seller shall meet to negotiate and resolve the objections within fifteen (15) days of Buyer's receipt of Seller's objections. Any items not agreed to at the end of the disputed amounts. In connection with the engagement of the Referee15-day period may, each of Buyer and Sellers shall execute any engagementat either party's request, indemnity and other agreement as the Referee shall require as a condition to such engagementbe resolved by arbitration. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee Seller and Buyer and Sellers are unable to cannot agree upon the designation of Final Settlement Statement, a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional nationally recognized accounting firm which does not perform work for either Seller or Buyer shall act as an arbitrator and decide all points of disagreement with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted respect to the Referee for resolution, (i) each Final Settlement Statement. The decision of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to firm on all such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and points shall be binding and conclusive on upon the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees parties. The costs and expenses of the Referee (the “Audit Fees”) such firm shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined borne by the Referee Party against whom the decision is rendered, or Sellers and Buyerin the event the decision is rendered favorably in part to each Party, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)on a proportional basis.
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical andpracticable following Closing, but in any event, no event later than ninety (90) calendar days after Closing, a final accounting statement will be prepared by Seller, subject to verification by Buyer, based on actual income and expenses between the Effective Time and the Closing Date, Sellers shall prepare Date and deliver which takes into account all final adjustments made to Buyer a statement the Properties Purchase Price (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing amounts as required by this Agreement. Notwithstanding the foregoing, failure to agree to such Final Settlement Statement shall not absolve either party from liability should such accounting and adjustment not be timely made and agreed to. The Final Settlement Statement shall set out the Adjusted Total Purchase Price as described redetermined by making the final adjustments to the Total Purchase Price as required in Section 2.04(d)3.2 above, and shall set forth Sellers’ calculation expressly excluding, however, the effect of any income and/or franchise taxes. If the amount paid at Closing exceeds the Adjusted Total Purchase Price.
(b) Following the delivery of Price as reflected in the Final Settlement Statement, Sellers then the excess amount shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked be paid by Buyer, and Sellers shall make available Seller to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
within twenty (c20) If, within thirty (30) calendar days following delivery Business Days of execution of the Final Settlement Statement by the Parties. If the amount paid at Closing is less than the Adjusted Total Purchase Price as reflected in the Final Settlement Statement, then the deficiency shall be paid by Buyer to Buyer, Buyer has not delivered to Sellers written notice Seller within twenty (the “Objection Notice”20) Business Days of Buyer’s objections to execution of the Final Settlement Statement or Sellers’ calculation of by the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of Parties. Any sum shown by the Final Settlement Statement), then Statement to be due shall be paid within the Adjusted Purchase Price as set forth specified time in such cash or by direct bank or wire transfer in same day funds with interest thereon from the date due at 6% per annum until paid. The Party shown to owe any sum in the Final Settlement Statement shall be deemed final and conclusive. In addition, any have discharged its obligation to the other party concerning the payment of Sellers’ calculations of the Adjusted Purchase Price as sums due upon its disbursement thereof in accordance with instructions set forth in the Final Settlement Statement which are not objected Statement; provided however, the Parties shall expressly reserve the right to audit (a) all costs, expenses and revenues taken into account in determining any difference between the Objection Notice shall be deemed final Total Purchase Price and conclusive.
the Adjusted Total Purchase Price at any time same is adjusted pursuant to the terms hereof and (db) If Buyer delivers all cost, expense and/or revenue items paid or accrued by either Party attributable to the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith Assets after the Effective Time. The Parties right to resolve the objections of Buyer audit as set forth in the Objection Notice this subsection shall remain in force for a period not to exceed fifteen of five (155) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in months after the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesdelivered.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 90 days after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of prepared based on actual revenues and expenses during the Interim Period and which takes into account all final adjustments made to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement Interim Period Carried Costs Amount and on a basis consistent with the preparation of the Closing Statement Cash Amount, as described in Section 2.04(d)applicable, and shall set forth Sellers’ calculation of shows the Interim Period Revenue Share, the resulting final Interim Period Carried Costs Amount and the final Adjusted Purchase PriceClosing Cash Amount.
(b) Following the delivery Within 30 days after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer the opportunity deliver to examine Seller a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Price, reasons therefor (the “Dispute Notice”). Any changes not so specified in the Dispute Notice will be deemed waived and Seller’s determinations with respect to all such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement that are not addressed specifically in the Dispute Notice will prevail. If Buyer fails to Buyer, timely deliver a Dispute Notice to Seller containing changes Buyer has not delivered proposes to Sellers written notice (the “Objection Notice”) of Buyer’s objections be made to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected toStatement, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price Statement as set forth in such Final Settlement Statement shall delivered by Seller will be deemed to be mutually agreed upon by the Parties and will be final and conclusivebinding on the Parties. In addition, any of Sellers’ calculations of If the final Interim Period Carried Costs Amount and the final Adjusted Purchase Price as Closing Cash Amount set forth in the Final Settlement Statement which are not objected is mutually agreed upon by Seller and Buyer, the Final Settlement Statement, the final Interim Period Carried Costs Amount and the final Adjusted Closing Cash Amount will be final and binding on the Parties, subject to the provisions of Section 2.3(b).
(c) If the final Adjusted Closing Cash Amount is: (a) more than the amount of the Adjusted Closing Cash Amount set forth in the Objection Notice Preliminary Settlement Statement used for purposes of the Closing, Buyer shall be pay Seller the amount of such excess; or (b) less than the amount of the Adjusted Closing Cash Amount set forth in the Preliminary Settlement Statement used for purposes of the Closing, Seller shall pay Buyer the amount of such difference, in either case, by wire transfers in immediately available funds no later than five Business Days after the date such final Adjusted Closing Cash Amount is agreed (or deemed final and conclusiveagreed) pursuant to this Section 3.5.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(cfinal Interim Period Carried Costs Amount is: (a) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve more than the objections of Buyer Interim Period Carried Costs Amount set forth in the Objection Notice Preliminary Settlement Statement that the Parties used for a period not to exceed fifteen (15) calendar days from purposes of Closing, Buyer shall pay Seller the date of delivery of the Objection Notice. If at the end amount of such fifteen excess; or (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to b) less than the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts Interim Period Carried Costs Amount set forth in the Final Preliminary Settlement Statement that have been identified the Parties used for purposes of Closing, Seller shall pay Buyer the amount of such difference, in either case, by Buyer wire transfers in the Objection Notice, which resolution shall be in accordance with this Agreement and immediately available funds no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days later than five Business Days after the objections that remain in dispute are submitted date such final Interim Period Carried Costs Amount is deemed agreed, pursuant to itthis Section 3.5.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar the date that is 120 days after the Closing Date, Sellers shall Seller will in good faith prepare and deliver to Buyer a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ (1) each adjustment or payment that was not finally determined as of Closing, (2) the calculation of such adjustment, and (3) the final adjustments to the Purchase Price in accordance with Cash Consideration (the Cash Consideration subject to such adjustments as finally determined pursuant to this Section 2.0413.1 is the “Final Cash Consideration”). The Final Settlement Statement Seller shall provide Buyer access to such of Seller’s records as may be prepared in accordance with this Agreement and reasonably necessary to verify the post-Closing adjustments shown on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement. No later than 20 days after receipt of Seller’s proposed Final Settlement Statement, Sellers Buyer shall afford deliver to Seller a written report (with supporting documentation including all relevant invoices with specific references and other information reasonably requested by Seller) containing any changes that Buyer proposes to make to the opportunity final adjustments to examine the Cash Consideration proposed in the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewdelivered by Seller. Sellers shall cooperate with Buyer Any changes not so specified in such examination, including responding written report from Buyer shall be deemed waived and Seller’s determinations with respect to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with all such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement to Buyer, Buyer has that are not delivered to Sellers addressed specifically in such written notice (the “Objection Notice”) of from Buyer shall prevail. Buyer’s objections failure to deliver to Seller a written report detailing proposed changes to the Final Settlement Statement or Sellers’ calculation of by the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis end of such objections and Buyer’s calculation of the amount(s) for the items objected to that 20-day period shall be deemed an acceptance by Buyer asserts should be used for purposes of the Final Settlement Statement)Statement as submitted by Seller and shall not be subject to further Dispute, then audit or arbitration. If Seller disagrees with any changes proposed by Buyer, the Adjusted Purchase Price as set forth in such Final Settlement Statement Parties shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor cooperate in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar any such Dispute no later than 50 days from the date of after Seller’s delivery of the Objection Noticeproposed Final Settlement Statement. The date upon which such Disputes are resolved or upon which the Final Cash Consideration is established is the “Final Settlement Date.” If the Final Cash Consideration (net of the Holdback Amount) is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If at the end Final Cash Consideration (net of the Holdback Amount) is less than the Closing Amount, Seller shall pay to Buyer the amount of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require difference. Any payment by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10a Party under this Section 13.1(a) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution made by wire transfer of disputed amounts set forth in immediately available funds within five days of the Final Settlement Statement that have been identified by Buyer Date. Subject to and except for the rights and obligations of the Parties described in Section 13.1(b), Section 9.3, or Article XIV (with respect to any obligation related to Taxes), the Objection Notice, which resolution shall be adjustments set out in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution final settlement of the disputed amounts. In connection Parties with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition respect to all matters addressed in such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesFinal Settlement Statement.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Earthstone Energy Inc)
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar the date that is 90 days after the Closing Date, Sellers shall Seller will prepare and deliver to Buyer a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ (i) each adjustment or payment that was not finally determined as of the Closing, (ii) the calculation of such adjustment, and (iii) the final adjustments to the Base Purchase Price in accordance with Section 2.04(the Base Purchase Price subject to such final adjustments is the “Final Purchase Price”). The No later than 30 days after receipt of Seller’s proposed Final Settlement Statement and all supporting documentation, Buyer shall be prepared in accordance deliver to Seller a written report (with this Agreement supporting documentation including all relevant invoices with specific references and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(bother information reasonably requested by Seller) Following the delivery of containing any changes that Buyer proposes to make to the Final Settlement Statement, Sellers shall afford Buyer the opportunity . Buyer’s failure to examine deliver to Seller a written report detailing proposed changes to the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers by that date shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested be deemed an acceptance by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement as submitted by Seller. The Parties shall agree with respect to the changes proposed by Buyer, Buyer has not delivered to Sellers written notice (if any, no later than 60 days after Seller’s delivery of the proposed Final Settlement Statement. The date upon which such agreement is reached or upon which the Final Purchase Price is established is the “Objection Notice”) of Buyer’s objections to Final Settlement Date.” If the Final Settlement Statement or Sellers’ calculation Purchase Price is more than the sum of the Adjusted Closing Amount and the Deposit, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price (which Objection Notice in order is less than the sum of the Closing Amount and the Deposit, Seller shall pay to be valid must contain a statement describing in reasonable detail Buyer the items objected to, the basis amount of such objections and Buyer’s calculation difference. Any payment by a Party under this Section 14.1(a) shall be made by wire transfer of the amount(s) for the items objected to that Buyer asserts should be used for purposes immediately available funds within five days of the Final Settlement StatementDate. Subject to and except for the rights and obligations of the Parties described in Section 14.1(b) or Article XV (with respect to any obligation related to Taxes), then the Adjusted Purchase Price as adjustments set forth out in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution final settlement of the disputed amounts. In connection Parties with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition respect to all matters addressed in such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesFinal Settlement Statement.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Centennial Resource Development, Inc.)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 120 days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting will be prepared by Seller in accordance with GAAP, that shall set forth Sellers’ the Adjusted Purchase Price, reflecting each adjustment made in accordance with this Agreement as of the date of preparation of such Final Settlement Statement and the calculation of the adjustments used to determine such amount and reasonably sufficient documentation, to the extent in Seller’s possession, to support such adjustment and the related calculation based on actual income and expenses and which takes into account all final adjustments made to the Purchase Price in accordance with Section 2.04and shows the resulting final Purchase Price (“Final Price”). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing amounts required by this Agreement. Purchaser shall have the right to audit the Final Settlement Statement and as described in Section 2.04(d)soon as practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery in any event within 30 days, after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer either agree in writing with the opportunity Final Settlement Statement or return a written report containing any proposed changes to examine the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice reasons therefor (the “Objection Dispute Notice”) of Buyer’s objections to ). If the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to is mutually agreed upon by Seller and Buyer, the net unpaid amount of the Final Price shall be paid according thereto. In addition, in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections event of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Dispute Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution applicable party will make payment in respect of disputed amounts set forth in all undisputed portions of the Final Settlement Statement that have been identified by Buyer in Statement. For the Objection Noticeavoidance of doubt, which resolution any payment owing under this Section 3.6 shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall not be subject to determination by the Referee except to the extent affected by resolution of the disputed amountsIndemnification Threshold or Indemnification Cap contained in Section 13.5. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may Any difference in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolution, (i) each of Buyer Preliminary Settlement Statement and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Final Price shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount owing party without interest within ten days of (i) the Final Settlement Statement or (ii) if the Final Price is disputed, resolution of the Final Price, to the owed party. All amounts paid pursuant to this Section 3.6 shall be delivered in dispute and United States currency by wire transfer of immediately available funds to the relative recovery as determined account specified in writing by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)relevant party within three Business Days.
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar days 180 Days after the Closing Date, Sellers shall prepare and Seller will deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation the actual amounts of Adjustments and the resulting Adjusted Purchase Price, together with associated back-up documentation. As soon as reasonably practicable, but in no event later than 20 Days after Buyer receives the Final Settlement Statement, Buyer may deliver to Seller a written report containing any changes that Buyer proposes to be made to such statement. If Buyer fails to timely deliver the written report to Seller containing changes Buyer proposes to be made to the Final Settlement Statement, the statement as delivered by Seller will be deemed to be correct and will be final and binding on the Parties and not subject to further audit or arbitration. As soon as reasonably practicable, but in no event later than 15 Days after Seller receives Buyer’s written report, the Parties shall meet and undertake to agree on the final adjustments to the Purchase Price in accordance with Section 2.04Final Settlement Statement. The If the Parties fail to agree on the final adjustments within such 15-Day period, either Party may submit the disputed items to the Accounting Referee for resolution. In determining the proper amount of any adjustment to the Final Settlement Statement, the Accounting Referee may not adjust the Final Settlement Statement to an amount greater or less than the amounts proposed by the Parties, and may not award damages or penalties to either Party with respect to any matter. The Parties shall direct the Accounting Referee to resolve the disputes within 20 Days after having the relevant materials submitted for review. The decision of the Accounting Referee will be prepared in accordance binding on and non-appealable by the Parties. Each Party will bear its own legal fees and other costs with respect to this Agreement dispute resolution process. The fees and on a basis consistent expenses associated with the preparation of Accounting Referee will be borne equally by the Closing Statement Parties. Any amounts owed by one Party to the other as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery a result of the Final Settlement Statement, Sellers shall afford Buyer together with interest on such amount from (and including) the opportunity Closing Date to examine (and excluding) the Final Settlement Statement and Sellers’ calculation date of payment at the Prime Rate, will be paid within five (5) Business Days after the date when the amounts are agreed upon by the Parties or the Parties receive a decision of the Adjusted Purchase PriceAccounting Referee, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth Adjustments included in the Final Settlement Statement which are not objected to in the Objection Notice shall will be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error not subject to further audit or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)arbitration.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Atlas Energy Group, LLC)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than On or before ninety (90) calendar days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) will be prepared by Purchaser and delivered to Sellers, setting forth Sellers’ Purchaser’s good faith calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared and reflecting each adjustment made in accordance with this Agreement and on a basis consistent with the preparation of resulting final Purchase Price (the Closing Statement “Final Price”). As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
in any event within thirty (b30) Following the delivery days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity return to examine Purchaser a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Pricereasons therefor (the “Dispute Notice”). Any changes not so specified in the Dispute Notice shall be deemed waived, and Purchaser’s determinations with respect to all such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement that are not addressed specifically in the Dispute Notice shall prevail. If Sellers fail to Buyer, Buyer has not delivered timely deliver a Dispute Notice to Purchaser containing changes Sellers written notice (the “Objection Notice”) of Buyer’s objections propose to be made to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected toStatement, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price Statement as set forth in such Final Settlement Statement shall delivered by Purchaser will be deemed to be correct and will be final and conclusivebinding on the parties hereto and not subject to further audit or arbitration. In addition, any of Sellers’ calculations of If the Adjusted Purchase Final Price as set forth in the Final Settlement Statement which are not objected to is mutually agreed upon in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then writing by Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in disputePurchaser, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer and the Final Price, shall be final and binding on the parties hereto and not subject to further audit or arbitration. Any difference in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolution, (i) each of Buyer Preliminary Settlement Statement and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Final Price shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount owing party within five (5) Business Days of final determination of such owed amounts in dispute and accordance herewith to the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)owed party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Carbon Energy Corp)
Final Settlement Statement. (a) As soon promptly as practical and, in any event, no later than ninety (90) calendar days practicable after the Closing Date, Sellers but in any event not later than 90 calendar days thereafter, Buyer shall, or shall cause the Company to, prepare and deliver submit to Buyer Seller a proposed statement (the “Final Settlement Statement”) setting forth Sellers’ ), which shall show the final calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
, as adjusted pursuant to Section 2.3 (b) Following the delivery “Final Purchase Price”). As soon as possible after receipt of the Final Settlement Statement, Sellers but in any event within 30 calendar days after receipt thereof, Seller shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available deliver to Buyer any records under Sellers’ control a written report containing the changes, if any, that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement Seller proposes to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections be made to the Final Settlement Statement Statement. Buyer covenants and agrees that, from the Closing Date until the Final Settlement Date, Buyer shall, or Sellers’ calculation of shall cause the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected Company to, make available for Seller at the basis of Company’s offices such objections financial and Buyer’s calculation of other records and information relating to the amount(s) Company as are necessary for Seller to create such report and agree upon the items objected to Final Purchase Price. In the event no response is made by Seller within such 30-day period, it shall be conclusively presumed that Buyer asserts should be used for purposes of Seller concurs with the Final Settlement Statement), then the Adjusted Purchase Price as set forth in and such Final Settlement Statement shall be deemed final and conclusivethe basis for the Final Purchase Price. In additionthe event that Seller submits a response, any of Sellers’ calculations of the Adjusted Seller and Buyer shall exercise all reasonable efforts to agree upon a mutually acceptable Final Purchase Price as set forth in and not later than 120 calendar days after the Closing Date (the “Final Settlement Date”). To the extent that Buyer and Seller have not agreed with respect to the amounts due pursuant to this Section 2.5 before the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in disputeDate, then either Seller or Buyer or Sellers may require by written notice to refer the other that the remaining objections issues in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent a mutually agreed accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the an “RefereeIndependent Accounting Firm”). The Referee’s engagement Independent Accounting Firm shall be limited instructed by Seller and Buyer to resolve the issues in dispute as soon as reasonably practicable in light of the circumstances but in no event in excess of 15 calendar days following the submission of such issues in dispute to the Independent Accounting Firm. The resolution of such issues by such firm shall be final and binding on Seller and Buyer. The costs of such public accountants shall be borne by the Party referring the issues in dispute unless the resolution of disputed amounts set forth such issues results in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating adjustments to the Final Settlement Statement in excess of $15,000 in favor of the Party referring the issues, in which case the other Party shall be subject to responsible for such payment. After agreement or other determination upon a Final Purchase Price setting forth the amount by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of which the Adjusted Purchase Price as are disputed within thirty shall be adjusted (30either upward or downward) calendar days after has been reached, then (a) if the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that Final Purchase Price is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicableBuyer shall pay to Seller an amount equal to the difference between the Final Purchase Price and the Adjusted Purchase Price, as set forth plus accrued interest thereon at a rate of 7% per annum from and excluding the Closing Date to and including the date of such payment (calculated on the basis of a 365-day calendar year), or (b) if the Final Purchase Price is less than the Adjusted Purchase Price, Seller shall pay to Buyer an amount equal to the difference between the Adjusted Purchase Price and the Final Purchase Price, plus accrued interest thereon at a rate of 7% per annum from and excluding the Closing Date to and including the date of such payment (calculated on the basis of a 365-day calendar year) (such payment in a written notice delivered to Sellers and Buyer by (a) or (b), the Referee, “Final Settlement Payment”). Payment of the Final Settlement Payment shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses within five Business Days of the Referee (Final Settlement Date or the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined decision by the Referee Independent Accounting Firm by the Party owing the same by confirmed wire transfer to a bank account or Sellers and Buyer, respectively (such that, accounts to be designated by way of example, if notice from the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)receiving Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic American Oil Corp)
Final Settlement Statement. At Closing, Sellers and Buyer shall agree upon an interim Statement of Adjustments setting out, to the extent reasonably practicable, based on information reasonably available, the adjustments to the Purchase Price pursuant to this Article 10. The net amount of the interim Statement of Adjustments will be added to or deducted from the amount payable under Section 3.1 by Buyer to Sellers at Closing (a) the "Closing Purchase Price"). As soon as practical andpracticable after Closing, but in any event, no event later than ninety sixty (9060) calendar days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared Buyer, in accordance with this Agreement and on generally accepted accounting principles, a basis consistent with statement ("Final Settlement Statement") setting forth each adjustment to the preparation Closing Purchase Price determined as of the Closing Statement as described in Section 2.04(d), Effective Date and shall set forth Sellers’ showing the calculation of the Adjusted Purchase Price.
such adjustments. Within thirty (b30) Following the delivery days after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer have the opportunity right to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and audit such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall will have access to Sellers' books and will deliver to Sellers a written report containing any changes that Buyer proposes be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor made in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice questions with respect to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or amounts due pursuant to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in and to establish the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted final Purchase Price as are disputed within thirty (30the "Final Purchase Price") calendar no later than one hundred twenty (120) days after Closing. Within five (5) days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to Final Purchase Price has been agreed upon by the Referee for resolutionParties, the difference between the Closing Purchase Price and the Final Purchase Price shall be (i) each of paid by Buyer and Sellers shall furnish to Sellers, if the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that Final Purchase Price is greater than the greatest value for such objection claimed Closing Purchase Price or (ii) paid by either Party or less Sellers to Buyer, if the Closing Purchase Price paid is greater than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Final Purchase Price, in each case in immediately available funds with interest calculated from the Effective Date through the date of payment at the prime rate in effect as applicableof the Closing Date as published in the Wall Street Journal. If the Parties cannot agree on the Final Settlement Statement, as set forth in a written notice delivered to Sellers and Buyer by the Referee, dispute shall be made resolved pursuant to arbitration in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)Section 16.8.
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical andIf the amount of the Closing Amount set forth on the Final Settlement Statement exceeds the Closing Amount set forth in the Settlement Statement, in any eventthen, no later than ninety (90) calendar days within 10 Business Days after the Closing Final Settlement Date, Sellers (i) Corporation and the Partnership shall prepare issue and deliver to Buyer Contributor a statement number of Adjustment Securities (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price calculated in accordance with Section 2.04. The 2.3) equal to the amount by which the Closing Amount set forth on the Final Settlement Statement exceeds the Closing Amount set forth in the Settlement Statement (provided, that such number of Adjustment Securities to be issued and delivered, together with any Adjustment Securities issued in excess of the Consideration on the Closing Date pursuant to Section 2.3, shall be prepared not exceed 495,900 Adjustment Securities in the aggregate) and (ii) if the amount that the Closing Amount set forth on the Final Settlement Statement exceeds the Closing Amount set forth in the Settlement Statement results in an aggregate dollar value of increases to the Consideration pursuant to Section 2.3 or this Section 3.5 in excess of the Maximum Adjustment Securities Value, then Corporation shall pay by wire transfer of immediately available funds, to the account designated by Contributor, such excess amount as an Adjustment Cash Payment. If the amount of the Closing Amount set forth on the Final Settlement Statement is less than the Closing Amount set forth in the Settlement Statement, then Contributor shall instruct the Transfer Agent to deliver to Corporation, within 10 Business Days after the Final Settlement Date, a number of Adjustment Securities (calculated in accordance with this Agreement and on a basis consistent with Section 2.3) equal to the preparation of amount by which the Closing Statement as described in Section 2.04(d), and shall Amount set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of on the Final Settlement Statement is less than the Closing Amount set forth in the Settlement Statement; provided, Sellers if Contributor has not, within 10 Business Days after the Final Settlement Date, instructed the Transfer Agent to deliver, or has not otherwise delivered (regardless of whether such failure to deliver is due to any act or omission of Contributor or the Transfer Agent), to Corporation the number of Adjustment Securities pursuant to the foregoing sentence, Contributor shall afford Buyer promptly (and in no event later than two Business Days) pay by wire transfer of immediately available funds, to the opportunity account designated by Corporation, an amount of cash equal to examine the absolute value of the difference between the Closing Amount set forth on the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as Closing Amount set forth in the Final Settlement Statement which are not objected to in the Objection Notice Statement. For purposes of clarity, any Adjustment Securities issued, delivered or transferred hereunder shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections include a corresponding number of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date shares of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be Corporation Series A Preferred Stock in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit FeesSection 2.2(b).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical andreasonably practicable after the Closing Date, but in any event, no event later than ninety (90) calendar days after the Closing Date, Sellers Buyer shall prepare and deliver to Buyer Seller: a final accounting statement, subject to verification by Seller, which sets forth, in reasonable detail, the final calculation and amount of the Adjusted Consideration, including the final calculation of the Working Capital and all other adjustments to the Cash Portion made in accordance with Section 2.4, and the actual proration of all other amounts required by this Agreement. For purposes of this Agreement, such final accounting statement (shall be referred to as the “Final Settlement Statement”) setting forth Sellers’ calculation of . Seller agrees to use reasonable commercial efforts to assist and cooperate with Buyer in the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the timely preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford including the calculation of the Working Capital. Buyer agrees to give Seller and its authorized representatives full access to such employees, officers, and facilities and such books and records of Buyer and the opportunity Company, to examine the extent within Buyer’s control, as is reasonably necessary to permit Seller to verify such calculations and/or review the Final Settlement Statement. No later than thirty (30) days after Seller’s receipt of the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by from Buyer, and Sellers Seller shall make available deliver to Buyer written notice setting forth any records under Sellers’ control that are requested changes to the Final Settlement Statement proposed by Seller. Buyer in connection with such review.
(c) If, and Seller shall endeavor to agree on the Final Settlement Statement within thirty (30) calendar days following delivery after Buyer’s receipt of Seller’s proposed changes thereto. If Buyer and Seller are unable to agree on the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice on or before thirty (the “Objection Notice”30) of days after Buyer’s objections receipt of Seller’s proposed changes thereto, then Buyer and Seller shall submit all unresolved claims and amounts for arbitration in accordance with the terms of Section 12.10. If the Parties reach agreement on the Final Settlement Statement, payment by the Party obligated to do so shall be due on the later of (a) the thirtieth (30th) day after the date on which Seller receives the Final Settlement Statement from Buyer, or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of b) five (5) Business Days after such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusiveagreement is reached. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in If Seller disputes the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement Section 9.1, and no other matter relating such dispute is resolved by arbitration, payment by the Party obligated to the Final Settlement Statement do so shall be subject to determination by due on the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
fifth (e5th) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days Business Day after the objections that remain in dispute are submitted to itarbitrators render their decision.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (ABC Funding, Inc)
Final Settlement Statement. (ai) As On the day immediately prior to the Closing Date, Sellers and the Purchaser Entities shall conduct a physical count of the Hydrocarbon Inventory in accordance with Schedule 3.3 (as estimated to the Effective Time) and determine the Working Capital (as estimated to the Effective Time), and as soon as practical andpracticable thereafter, but, in any event, no later than ninety sixty (9060) calendar days after the Closing Date, Sellers shall prepare determine the Final Hydrocarbon Inventory Amount, based upon such physical count and in accordance with Schedule 3.3, and the Final Working Capital Amount, and deliver to Buyer the Purchaser Entities a final settlement statement containing the Final Hydrocarbon Inventory Amount and the Final Working Capital Amount (the “Final Settlement Statement”) setting forth Sellers’ calculation ). Reconciliation of the adjustments Estimated IT Costs and the Final IT Costs shall be concluded pursuant to the Purchase Price in accordance with Section 2.04. section 10.5 of Part A of Schedule 13.1.
(ii) The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation conclusive of the Closing Statement as described in Section 2.04(d)Final Hydrocarbon Inventory Amount and the Final Working Capital Amount, and such amounts shall be final and binding upon the Parties, unless before the thirtieth (30th) day after the date on which such Final Settlement Statement was delivered to the Purchaser Entities, the Purchaser Entities give to Sellers a notice (an “Objection Notice”) objecting to any matter stated in such Final Settlement Statement. Such Objection Notice shall specify, in reasonable detail, those items or amounts as to which the Purchaser Entities dispute, and the Purchaser Entities shall be deemed to have agreed with all other items and amounts contained in such Final Settlement Statement and the calculations of the Final Hydrocarbon Inventory Amount and the Final Working Capital Amount set forth Sellerstherein. During the 30-day period after the Purchaser Entities’ calculation of the Adjusted Purchase Price.
(b) Following the delivery receipt of the Final Settlement Statement, during normal business hours and with prior notice, Sellers shall afford Buyer make reasonably available Representatives of Sellers to answer questions as well as provide any reasonably available supporting documentation, in each case, with respect to the opportunity to examine calculation of the Final Working Capital Amount and Final Hydrocarbon Inventory Amount specified in the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such reviewStatement.
(ciii) If, If the Purchaser Entities fail to deliver an Objection Notice within such thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected today period, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected Purchaser Entities shall be deemed to that Buyer asserts should be used for purposes of have waived their rights to contest the Final Settlement Statement), then and the Adjusted Purchase Price as Final Hydrocarbon Inventory Amount and the Final Working Capital Amount set forth in such Final Settlement Statement therein shall be deemed to be final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then binding upon Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement Purchaser Entities and shall be binding and conclusive on used for the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) purposes of calculating the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)adjustment pursuant to Section 3.4 below.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Par Pacific Holdings, Inc.)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than On or before ninety (90) calendar days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) will be prepared by Purchaser and delivered to Sellers, setting forth Sellers’ Purchaser’s good faith calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared and reflecting each adjustment made in accordance with this Agreement and on a basis consistent with the preparation of resulting final Purchase Price (the Closing Statement “Final Price”). As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
in any event within thirty (b30) Following the delivery days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity return to examine Purchaser a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Pricereasons therefor (the “Dispute Notice”). Any changes not so specified in the Dispute Notice shall be deemed waived, and Purchaser’s determinations with respect to all such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement that are not addressed specifically in the Dispute Notice shall prevail. If Sellers fail to Buyer, Buyer has not delivered timely deliver a Dispute Notice to Purchaser containing changes Sellers written notice (the “Objection Notice”) of Buyer’s objections propose to be made to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected toStatement, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price Statement as set forth in such Final Settlement Statement shall delivered by Purchaser will be deemed to be correct and will be final and conclusivebinding on the parties hereto and not subject to further audit or arbitration. In addition, any of Sellers’ calculations of If the Adjusted Purchase Final Price as set forth in the Final Settlement Statement which are not objected to is mutually agreed upon in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then writing by Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in disputePurchaser, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer and the Final Price, shall be final and binding on the parties hereto and not subject to further audit or arbitration. Any difference in the Objection NoticePurchase Price paid at Closing, which resolution in cash or represented by the Purchase Notes, pursuant to the Preliminary Settlement Statement, and the Final Price, shall be adjust the principal of each of the Purchase Notes, pro rata in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as percentages set forth in a written notice delivered to Sellers and Buyer Exhibit A opposite each Seller’s name, on the day of the final determination of such owed amounts in accordance herewith by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses amount of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 difference in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)owed party.”
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Carbon Energy Corp)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days On or before the 90th day after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer in accordance with this Agreement, a statement (the “Final Settlement Statement”) setting forth Sellers’ forth:
(i) Seller’s calculation of the final adjustments to be made to the Base Purchase Price pursuant to Section 2.3, other than adjustments for any Title Defects that have been submitted to dispute resolution in accordance with Section 2.04. The Final Settlement Statement shall be prepared the Title Defect Mechanism; and
(ii) the final amounts due for any Title Defects cured by Seller after the Closing, or resolved in accordance with this Agreement and on a basis consistent with ▇▇▇▇▇’s favor after the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase PriceClosing.
(b) Following the delivery Within 20 days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity ▇▇▇▇▇ may deliver to examine Seller a written report containing any changes that ▇▇▇▇▇ proposes be made to the Final Settlement Statement and Sellers’ calculation the reasons for those changes. The parties shall attempt to agree to the amounts due pursuant to such adjustments, including any disputed amounts, no later than 30 days after ▇▇▇▇▇’s receipt of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such reviewFinal Settlement Statement.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections If Seller and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation Final Settlement Statement by the 45th day after ▇▇▇▇▇’s receipt of same, the Parties will refer the Final Settlement Statement and any necessary supporting information to KPMG LLP (or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by ▇▇▇▇▇ and Seller in writing) (the “Referral Firm”). The Referral Firm will be directed to review Seller’s Final Settlement Statement and the records relating to the Assets and determine the final adjustments, other than adjustments for Title Defects which shall be determined in accordance with the Title Defect Mechanism. With respect to any matters under this Agreement to be resolved by the Referral Firm, neither the Referral Firm nor any person employed by the Referral Firm will interpret the provisions of this Agreement unless otherwise agreed by Seller and Buyer. With respect to any matters for which interpretation of this Agreement is required pursuant to settlement of matters under this Section 2.6, and for which Buyer and Seller cannot agree on such interpretation, such matter shall be submitted to arbitration in a Person similar manner as substitute arbitratorset forth in Exhibit A, then paragraph 8 regarding Title Defect disputes and the Referral Firm shall decide all other matters specified in this Section 2.6. The decision of the Referral Firm shall be binding on Buyer or Sellersand Seller, or either and the fees and expenses of them, may the Referral Firm shall be borne one-half each by Buyer and Seller. The Referral Firm shall deliver its final calculation of the Purchase Price in writing request to Buyer and Seller as soon as practicable, and the Bankruptcy Court to appoint parties shall pay and receive the substitute refereefinal adjustment amount, no later than the 5th Business Day following the owing party’s receipt from the Referral Firm of the final Purchase Price determination.
(d) The date that is the later of: (i) the 30th day following ▇▇▇▇▇’s receipt of the Final Settlement Statement; provided that such Person so appointed shall or (ii) the date on which the last of all disputed adjustments, if there are any, is settled, will be a national or regional accounting firm the “Final Settlement Date.” No later than five Business Days after the Final Settlement Date, the Party owing the greater amount in accordance with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesthe approved Final Settlement Statement must pay the other Party the net difference, by wire transfer of immediately available funds.
(e) The Referee shall determine such items parties will, and will cause their representatives to, cooperate and assist in the preparation of the calculation Final Settlement Statement and the conduct of the Adjusted Purchase Price reviews and audits referred to in this Section 2.6, including but not limited to making available books, records and personnel as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to itreasonably required.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase Agreement
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar the date that is 120 days after the Closing Date, Sellers shall Seller will in good faith prepare and deliver to Buyer a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ (1) each adjustment or payment that was not finally determined as of Closing, (2) the calculation of such adjustment, and (3) the final adjustments to the Purchase Price in accordance with Cash Consideration (the Cash Consideration subject to such adjustments as finally determined pursuant to this Section 2.0413.1 is the “Final Cash Consideration”). The Final Settlement Statement Seller shall provide Buyer access to such of Seller’s records as may be prepared in accordance with this Agreement and reasonably necessary to verify the post-Closing adjustments shown on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement. No later than 20 days after receipt of Seller’s proposed Final Settlement Statement, Sellers Buyer shall afford deliver to Seller a written report (with supporting documentation including all relevant invoices with specific references and other information reasonably requested by Seller) containing any changes that Buyer proposes to make to the opportunity final adjustments to examine the Cash Consideration proposed in the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewdelivered by Seller. Sellers shall cooperate with Buyer Any changes not so specified in such examination, including responding written report from Buyer shall be deemed waived and Seller’s determinations with respect to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with all such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement to Buyer, Buyer has that are not delivered to Sellers addressed specifically in such written notice (the “Objection Notice”) of from Buyer shall prevail. Buyer’s objections failure to deliver to Seller a written report detailing proposed changes to the Final Settlement Statement or Sellers’ calculation of by the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis end of such objections and Buyer’s calculation of the amount(s) for the items objected to that 20-day period shall be deemed an acceptance by Buyer asserts should be used for purposes of the Final Settlement Statement)Statement as submitted by Seller and shall not be subject to further Dispute, then audit or arbitration. If Seller disagrees with any changes proposed by Buyer, the Adjusted Purchase Price as set forth in such Final Settlement Statement Parties shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor cooperate in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar any such Dispute no later than 50 days from the date of after Seller’s delivery of the Objection Noticeproposed Final Settlement Statement. The date upon which such Disputes are resolved or upon which the Final Cash Consideration is established is the “Final Settlement Date.” If the Final Cash Consideration is more than the sum of the Closing Amount and the Deposit, Buyer shall pay Seller the amount of such difference. If at the end Final Cash Consideration is less than the sum of the Closing Amount and the Deposit, Seller shall pay to Buyer the amount of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require difference. Any payment by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10a Party under this Section 13.1(a) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution made by wire transfer of disputed amounts set forth in immediately available funds within five days of the Final Settlement Statement that have been identified by Buyer Date. Subject to and except for the rights and obligations of the Parties described in Section 13.1(b), Section 9.3, or Article XIV (with respect to any obligation related to Taxes), the Objection Notice, which resolution shall be adjustments set out in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution final settlement of the disputed amounts. In connection Parties with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition respect to all matters addressed in such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesFinal Settlement Statement.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Earthstone Energy Inc)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 120 days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation will be prepared by Seller’s Representatives based on actual income and expenses during the period from and after the Effective Time until Closing and which takes into account all final adjustments made to the Participating Purchase Price and shows the resulting final Adjusted Purchase Price. Buyer shall cooperate with Seller’s Representatives and use its commercially reasonable efforts to promptly furnish to Seller’s Representatives all information in Buyer’s possession relevant to preparation of the adjustments to the Purchase Price in accordance with Section 2.04Final Settlement Statement upon written request. The Final Settlement Statement shall set forth the actual proration of amounts as may be prepared in accordance with required by this Agreement and on a basis consistent with Agreement. The Final Settlement Statement shall also set forth the preparation Seller’s Representatives’ allocation of the Closing Statement Final Adjusted Amount among the BJH Represented Sellers and the ▇▇▇▇▇▇▇ Represented Sellers, and, if needed, shall provide wiring instructions for the Seller’s Representative representing BJH Represented Sellers and the Seller’s Representative representing the ▇▇▇▇▇▇▇ Represented Sellers. As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery in any event within 45 days after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer the opportunity return to examine Seller’s Representatives a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the reasons therefor (the “Dispute Notice”), which Dispute Notice, for the avoidance of doubt, shall not challenge or address any allocation of the Adjusted Purchase Price, and Price among the Sellers that was proposed by the Seller’s Representatives. Buyer’s failure to deliver to Seller’s Representatives a Dispute Notice detailing proposed changes to the Final Settlement Statement by such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers date shall cooperate with Buyer in such examination, including responding be deemed to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested be an acceptance by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyerby Seller’s objections Representatives and any changes to the Final Settlement Statement as initially prepared by Seller’s Representatives that are proposed or Sellersrequested by Buyer and not included in the Dispute Notice shall be deemed waived, and Seller’s Representatives’ calculation determinations with respect to all such adjustments in the Final Settlement Statement that are not addressed in the Dispute Notice shall prevail. Upon delivery of a Dispute Notice, Buyer and the Seller’s Representatives will promptly meet to discuss the contents thereof and attempt to come to agreement upon the disputed items contained therein (other than any allocation of the Adjusted Purchase Price (among the Sellers, which Objection Notice in order to allocation shall be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation sole purview of the amount(s) for Seller’s Representatives). If the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the final Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected is mutually agreed upon by Seller’s Representatives and Buyer or deemed agreed pursuant to in the Objection Notice shall be deemed foregoing (or determined by the Accounting Arbitrator pursuant to Section 3.6), the Final Settlement Statement (except, for the avoidance of doubt, as it HN\1533753.22 relates to any adjustments for Asset Taxes), such final Adjusted Purchase Price as agreed by the Seller’s Representatives and conclusive.
the Buyer (dor as determined by the Accounting Arbitrator) If Buyer delivers and such allocation among the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then BJH Represented Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or Represented Sellers (as agreed by the Seller’s Representatives) (collectively, the “Final Price”), shall be final and binding on the Parties.
(b) Any difference in the Adjusted Purchase Price as paid at Closing pursuant to the Preliminary Settlement Statement and the Final Price (such other independent accounting firm amount, the “Final Adjustment Amount”) shall be paid as may be selected jointly follows:
(i) If the Final Adjustment Amount is owed by Buyer and Sellers within to Sellers, then, on or before the ten (10) calendar date that is 10 days following a agreement or deemed agreement (or determination by the Accounting Arbitrator, as applicable) (such date, the “Final Payment Date”), the Buyer shall pay the applicable amount to (and Buyer and Seller’s Representatives shall deliver joint written request by Buyer or instructions to the Escrow Agent directing the Escrow Agent to deliver the Adjustment Escrow to) the Seller’s Representative representing the BJH Represented Sellers (▇▇▇▇▇ ▇and the Seller’s Representative representing the ▇▇▇▇▇▇▇ LLP Represented Sellers, as applicable, and in each case in accordance with the applicable allocation agreed to (or such jointly selected accounting firmdetermined) as part of the Final Price. For the avoidance of doubt, the “Referee”). The Referee’s engagement all amounts owing to Sellers from Buyer pursuant to this Section 3.5 shall be limited payable to the resolution of disputed amounts set forth Seller’s Representatives as payment agent for the Sellers represented by such Seller’s Representatives, to the accounts provided in writing by such Seller’s Representatives in the Final Settlement Statement Statement, which shall in turn be distributed by the applicable Seller’s Representatives to the Sellers represented by such Seller’s Representatives as provided in Section 2.4.
(ii) If the Final Adjustment Amount is owed by Sellers to Buyer, then, on or before the Final Payment Date, the Seller’s Representative (for any such Seller that have been identified by is required to pay Buyer pursuant to this Section 3.5(b)(ii)) shall pay Buyer the Final Adjustment Amount as provided in this Section 3.5(b)(ii). If the Final Adjustment Amount is less than or equal to the Adjustment Escrow, Seller’s Representatives and Buyer shall deliver joint written instructions to the Escrow Agent to deliver (A) the Final Adjustment Amount to Buyer and (B) any remaining amounts in the Objection NoticeAdjustment Escrow to each of the Seller’s Representatives (in such proportions as directed by the Seller’s Representatives). If the Final Adjustment Amount is greater than the Adjustment Escrow, which resolution Seller’s Representatives and Buyer shall deliver joint written instructions to the Escrow Agent to (1) deliver the Adjustment Escrow to Buyer and (2) the portion of the Final Adjustment Amount not satisfied by the payment of the Adjustment Escrow shall be in accordance with paid by Seller’s Representatives (on a joint and several basis). For the avoidance of doubt, no amounts owing under this Agreement and no other matter relating Section 3.5 by Sellers to Buyer shall be paid from the Indemnity Escrow. HN\1533753.22
(iii) If any such difference (i.e., the portion of the Final Settlement Statement shall be subject to determination Adjustment Amount not satisfied by the Referee except to the extent affected by resolution payment of the disputed amounts. In connection with Adjustment Escrow) is owed between the engagement of BJH Represented Sellers and the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Represented Sellers, then, on or either before the Final Payment Date, the Sellers and the Seller’s Representatives representing the applicable Sellers shall make such allocations and disbursements as are appropriate based on the applicable allocation agreed to (or determined) as part of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesFinal Price.
(eiv) The Referee In addition, on or before the Final Payment Date, each Seller shall determine transfer to Buyer all Suspense Funds held by such items Seller.
(v) All amounts paid or transferred pursuant to this Section 3.5 shall be delivered in United States currency by wire transfer of immediately available funds to the calculation of account or accounts specified in writing by Buyer or the relevant Seller’s Representative(s), as applicable.
(c) At Closing, Buyer shall deposit Five Million Dollars ($5,000,000) by wire transfer in same day funds with Escrow Agent (such amount deposited with the Escrow Agent, together with any interest and earnings thereon, the “Adjustment Escrow”), such amount to be credited against the Adjusted Purchase Price as are disputed within thirty (30) calendar days after to be paid by Buyer at Closing. The Adjustment Escrow shall be retained in the objections escrow account established with Escrow Agent to satisfy amounts that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and may be owed by Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the upon determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, Final Price as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)Section 3.5.
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 150 days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of will be prepared by Seller, based on actual income and expenses during the Interim Period and which takes into account all final adjustments made to the Purchase Price in accordance with Section 2.04and shows the resulting final Purchase Price (“Final Price”). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing Statement amounts required by this Agreement. As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery in any event within 60 days, after receipt of the Final Settlement Statement, Sellers Buyer shall afford Buyer either agree in writing with the opportunity Final Settlement Statement or return a written report containing any proposed changes to examine the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice reasons therefor (the “Objection Dispute Notice”) of Buyer’s objections to ). If the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in is mutually agreed upon by Seller and Buyer, the Objection Notice net unpaid amount of the Final Price shall be deemed final and conclusive.
(d) If Buyer delivers paid according thereto. For the Objection Notice satisfying avoidance of doubt, any payment owing under this Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer 3.6 shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to Indemnification Deductible or the extent affected by resolution of the disputed amountsIndemnification Cap contained in Section 14.5. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may Any difference in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted paid at Closing pursuant to the Referee for resolution, (i) each of Buyer Preliminary Settlement Statement and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Final Price shall be paid by and apportioned between the owing party without interest within ten (10) days of (i) the Final Settlement Statement or (ii) if the Final Price is disputed, resolution of the Final Price, to the owed party.
(b) If Seller fails to prepare the Final Settlement Statement within such 150-day period, it shall pay to Buyer and Sellers based interest at the rate of 8% per annum from the 151st day after the Closing (the “Specified Date”) until preparation of such Final Settlement Statement on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of examplenet amount, if any, found to be owing to Buyer as shown on such Final Settlement Statement.
(c) If Buyer fails to either agree with the amount in dispute is $100 and it is resolved $70 in favor Final Settlement Statement or return a Dispute Notice within 60 days of Buyer and $30 in favor of Sellers, then Sellers would bear 70% its receipt of the Audit Fees Final Settlement Statement, it shall pay to Seller interest at the rate of 8% per annum from the Specified Date on the net amount, if any, found to be owing to Seller as shown on such Final Settlement Statement and Buyer would bear 30% of shall be deemed to have agreed with the Audit Fees)Final Settlement Statement.
Appears in 1 contract
Final Settlement Statement. Not more than one hundred and twenty (a120) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared Buyer, in accordance with this Agreement and on Agreement, a basis consistent with the preparation Final Settlement Statement setting forth each adjustment or payment which was not finally determined as of the Closing in the Closing Settlement Statement as described in Section 2.04(d), under Sections 10(a) and shall set forth Sellers’ 10(b) and showing the calculation of the Adjusted Purchase Price.
(b) Following the delivery such adjustments. As soon as practicable after receipt of the Final Settlement Statement, Sellers Buyer shall afford deliver to Seller a written report containing any changes which Buyer the opportunity proposes be made to examine the Final Settlement Statement Statement. The Parties shall undertake to agree with respect to the amounts due pursuant to such post-Closing adjustments no later than one hundred and Sellers’ calculation fifty (150) days after the Closing. The date upon which such agreement is reached or upon which the final adjusted Purchase Price is otherwise established pursuant to this paragraph (the “Final Purchase Price”) shall be called the “Final Settlement Date”. In the event that the Parties cannot agree on the Final Purchase Price within one hundred and fifty (150) days after the Closing, such determination will be automatically referred to an independent expert of the Adjusted Purchase PriceParties’ choosing with at least ten (10) years of oil and gas accounting experience for arbitration (the “Independent Expert”). If the Parties are unable to agree upon an Independent Expert, and then such supporting schedules and analyses as are reasonably necessary and appropriate Independent Expert shall be selected by the Denver, Colorado office of the American Arbitration Association. The Independent Expert shall conduct the arbitration proceedings in connection Denver, Colorado in accordance with the Commercial Arbitration Rules of the American Arbitration Association, to the extent such reviewrules do not conflict with the terms of this Section. Sellers The Independent Expert’s determination shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, be made within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination submission of the matters in dispute (or if not possible, as soon as possible thereafter) and shall be final and binding on both Parties, without right of appeal. In determining the proper amount of any adjustment to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by Purchase Price, the Referee; (ii) the Referee Independent Expert shall not assign a value to such objection that is greater increase the Purchase Price more than the greatest value increase proposed by Seller nor decrease the Purchase Price more than the decrease proposed by Buyer, as applicable. The Independent Expert shall act as an expert for such objection claimed the limited purpose of determining the specific disputed adjustments to the Purchase Price submitted by either Party and may not award damages or less than the smallest value for such objection claimed by penalties to either Party; (iii) the determination by the Referee Party with respect to any matter. Seller and Buyer shall each bear its own legal fees and other costs of items presenting its case. Each Party shall bear one-half of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees costs and expenses of the Referee Independent Expert. In the event that (1) the “Audit Fees”Final Purchase Price is more than the amount paid to Seller at Closing, Buyer shall pay to Seller in immediately available funds the amount of such difference, or (2) the Final Purchase Price is less than the amount paid to Seller at Closing, Seller shall pay to Buyer in immediately available funds the amount of such difference. Payment by Buyer or Seller shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% made within five business days of the Audit Fees and Buyer would bear 30% of the Audit Fees)Final Settlement Date.
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical andreasonably practicable, but in any event, no event later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and Seller will deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the actual adjustments to the Purchase Price pursuant to Section 3.3. As soon as reasonably practicable, but in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
no event later than thirty (b30) Following the delivery of Days after Buyer receives the Final Settlement Statement, Sellers Buyer may deliver to Seller a written report containing any changes that Buyer proposes to be made to such statement. Such changes shall afford be specified in reasonable detail with reasonable supporting documentation. Any changes not so specified shall be deemed waived, and Seller’s determinations shall prevail. If Buyer fails to timely deliver the opportunity written report to examine Seller containing changes Buyer proposes to be made to the Final Settlement Statement Statement, the statement as delivered by Seller will be deemed to be correct and Sellers’ calculation of will be final and binding on the Adjusted Purchase PriceParties and not subject to further audit or arbitration. As soon as reasonably practicable, but in no event later than fifteen (15) Days after Seller receives Buyer’s written report, the Parties shall meet and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewundertake to agree on the final adjustments to the Final Settlement Statement. Sellers If the Parties fail to agree on the final adjustments within the fifteen (15) Day period, either Party may submit the disputed items to the Accounting Referee for resolution. The Parties shall cooperate with Buyer in such examination, including responding direct the Accounting Referee to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, resolve the disputes within thirty (30) calendar days following delivery Days after having the relevant materials submitted for review. The decision of the Accounting Referee will be binding on and non-appealable by the Parties. The fees and expenses associated with the Accounting Referee will be borne equally by the Parties. Any amounts owed by one Party to the other as a result of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice will be paid within five (5) Business Days after the “Objection Notice”) of Buyer’s objections to date when the Final Settlement Statement amounts are agreed upon by the Parties or Sellers’ calculation the Parties receive a decision of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail Accounting Referee, and the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth included in the Final Settlement Statement which are not objected to in the Objection Notice shall will be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on between the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error not subject to further audit or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)arbitration.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Evolution Petroleum Corp)
Final Settlement Statement. (a) As soon as practical andreasonably practicable, but in no event later than one hundred eighty (180) Days after the end of the Transition Period, Seller shall deliver to Purchaser a statement setting forth the adjustments to the Purchase Price pursuant to this Article VI and any other adjustments to the Purchase Price expressly permitted hereunder, in any event, no later than ninety (90) calendar days after substantially the Closing Date, Sellers shall prepare and deliver to Buyer a statement form of the Preliminary Settlement Statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of ). Upon request, Seller shall provide accounting support for any entry on the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared of which Purchaser is not already in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement possession. As soon as described reasonably practicable, but in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
no event later than forty-five (b45) Following the delivery of Days after Purchaser receives the Final Settlement Statement, Sellers Purchaser may deliver to Seller a written report containing any changes that Purchaser proposes in good faith to be made to such statement, stating in reasonable detail its objections and the amounts to which it objects. If Purchaser fails to timely deliver the written report to Seller containing changes Purchaser proposes to be made to the Final Settlement Statement, the statement as delivered by Seller shall afford Buyer be deemed to be correct and shall be final and binding on the opportunity Parties and not subject to examine further review, audit, arbitration or legal proceedings. If Purchaser timely delivers the written report to Seller containing changes Purchaser proposes to be made to the Final Settlement Statement, then as soon as reasonably practicable, but in no event later than thirty (30) Days after Seller receives Purchaser’s written report, the Parties shall meet and undertake to agree on the final adjustments to the Final Settlement Statement. If the Parties fail to agree on the final adjustments within the thirty (30) Day period, then either Party, by written notice to the Accounting Referee and the other Party, may submit the disputed items to the Accounting Referee for resolution (with copy concurrently delivered to the other Party). Each Party shall have the right to submit to the Accounting Referee (with copy concurrently delivered to the other Party) (i) a position statement on such disputed items within ten (10) Business Days after delivery of the notice to the Accounting Referee and (ii) a rebuttal statement to the other Party’s position statement within ten (10) Business Days after expiration of such initial ten (10) Business Day period. Failure of a Party to timely submit its position statement to the Accounting Referee shall constitute a waiver by such Party as to each particular item in dispute and its agreement to the amount proposed by the other Party. Either Party may request that the Accounting Referee accept or decline the appointment in writing within ten (10) Business Days after its receipt of the initial position statement. The Accounting Referee will make a determination resolving the disputed items to be reflected in the Final Settlement Statement based on the written position statements and Sellers’ calculation rebuttal statements from Purchaser and Seller and the Accounting Referee shall not take any testimony or hear any oral argument. The Accounting Referee may request, as it deems appropriate, any additional information from (and provide opportunity to rebut responses to) the Parties, with notice to both Parties of all such requests and the Adjusted Purchase Price, related responses. The Parties shall respond promptly to all requests from the Accounting Referee for additional information and such supporting schedules clarification. The Accounting Referee shall address only those items in dispute and analyses as are reasonably necessary and appropriate in connection with such reviewmay not determine the disputed items to be greater than the greatest amount claimed by a Party or smaller than the smallest amount claimed by a Party. Sellers The Accounting Referee shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, resolve the disputes within thirty (30) calendar days following delivery Days after expiration of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”)Day rebuttal period. The Referee’s engagement shall be limited to decision of the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution Accounting Referee shall be in accordance writing and will be final and binding on and non-appealable by the Parties, absent manifest error. The fees and expenses associated with this Agreement the Accounting Referee shall be borne equally by Purchaser and no Seller and paid promptly upon receipt of the Accounting HOUSTON 1151220v.11 Referee’s invoices. Any amounts owed by one Party to the other matter relating to Party as a result of the Final Settlement Statement shall be paid within fifteen (15) Business Days after the date when the amounts are agreed upon by the Parties, are deemed correct as provided above or the Parties receive the decision of the Accounting Referee, and the amounts included in the Final Settlement Statement shall be final and binding between the Parties and not subject to determination by the Referee except to the extent affected by resolution of the disputed amountsfurther audit, arbitration or other legal proceeding. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the The Accounting Referee shall require act as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as an expert for the Referee and Buyer and Sellers are unable to agree upon limited purpose of determining the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are specific disputed within thirty (30) calendar days after the objections that remain in dispute are matter submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party and may not award damages or less than penalties to either Party with respect to any matter. Except as expressly provided herein, whenever the smallest value for Accounting Referee is retained to resolve a dispute as provided pursuant to this Agreement, the Accounting Referee may determine the issues in dispute following such objection claimed by either Party; (iii) procedures, consistent with the determination by express provisions of this Agreement, as the Accounting Referee of items deems appropriate to the circumstances and with reference to the amounts in issue. Except as expressly provided herein, the Parties do not intend to impose any particular procedures upon the Accounting Referee, it being the desire of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, Parties that any such disagreement shall be made in accordance with this Agreement resolved as expeditiously and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery inexpensively as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)reasonably practicable.
Appears in 1 contract
Final Settlement Statement. (a) As soon as reasonably practical andafter the Closing, in any event, but no later than ninety (90) calendar days after the 120th day following the Closing Date, Sellers shall Seller will prepare and deliver to Buyer Purchaser a statement (the “Final Settlement Statement”) setting forth Sellers’ the final calculation of the Adjusted Purchase Price including all of the adjustments made to the Purchase Price together with an explanation of how each adjustment was calculated. Seller will deliver to Purchaser reasonable documentation supporting the calculations set forth on the Final Settlement Statement. The Final Settlement Statement will become final and binding on Seller and Purchaser as to the Adjusted Purchase Price on the 30th day following the date the Final Settlement Statement is received by Purchaser, unless prior to such 30th day Purchaser delivers to Seller notice of its disagreement with the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) Statement, together with proposed changes thereto. If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day periodPurchaser has delivered a notice of disagreement, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement will become final and no other matter relating to binding upon written agreement between Purchaser and Seller resolving all disagreements between Purchaser and Seller. If the Final Settlement Statement shall has not become final and binding by the 60th day following its receipt by Purchaser, then Purchaser's disagreement will be subject submitted to determination by the Referee except Accounting Expert. For purposes of this Agreement, the “Accounting Expert” means a national accounting firm selected by mutual agreement of Purchaser and Seller. If the Parties cannot agree on the Accounting Expert, they will request that the Institute for Conflict Prevention and Resolution select an Accounting Expert that does not represent, and has not recently represented, either Party. The determination of the Final Settlement Statement by the Accounting Expert will be completed within 30 days and will be final and binding upon Purchaser and Seller as to the extent affected actual Adjusted Purchase Price. Seller and Purchaser agree to provide all data, documents and information requested by resolution of the disputed amountsAccounting Expert in a timely manner. In connection with Within ten days after the engagement of date the RefereeFinal Settlement Statement has become final and binding (the “Final Settlement Date”), each of Buyer and Sellers shall execute any engagementPurchaser will pay to Seller the amount, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitratorif any, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of by which the Adjusted Purchase Price as are disputed within thirty (30) calendar days after exceeds the objections that remain in dispute are submitted Purchase Price, or Seller will pay to it.
(f) If any disputed items are submitted to Purchaser the Referee for resolutionamount, (i) each of Buyer and Sellers shall furnish to if any, by which the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of Purchase Price exceeds the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the Net Working Capital Adjustment and the adjustments to the Purchase Price in accordance with Section 2.04). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d2.04(e), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BDO USA LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BDO USA LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BDO USA LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Asset Purchase Agreement (Basic Energy Services, Inc.)
Final Settlement Statement. Seller shall issue a final settlement statement covering all adjustments, without duplication, to the Base Purchase Price that were not included (aor otherwise were only included as an estimate) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement Settlement Statement (the “Final Settlement Statement”) setting forth Sellers’ calculation within one hundred twenty (120) days after the Closing (the “Settlement Submission Date”). Buyer shall respond with objections and proposed corrections within thirty (30) days of the adjustments date of Seller’s issuance of the Final Settlement Statement. If Buyer does not respond with objections and the support therefor to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation writing within thirty (30) days of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery issuance of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such said Final Settlement Statement shall be deemed final and conclusiveapproved by Buyer. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final event that Buyer does respond and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, objects within such thirty (30)-day this time period, then Sellers and Buyer the Parties shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed meet within fifteen (15) calendar days from following Seller’s receipt of Buyer’s objections and attempt to resolve the date of delivery of the Objection Noticedisputed items. If at the Parties are unable to resolve the disputed items by the end of such fifteen (15)-day period there are any objections that remain 15) day period, the dispute shall be resolved in disputeaccordance with the dispute resolution provisions set forth in Section 19.4. After approval by both Parties (or after final resolution of the same under Section 19.4), then either the net adjustment due pursuant to the Final Settlement Statement for the Assets conveyed shall be summarized and a net check or invoice shall be sent to Buyer or Sellers Seller, as the case may require by written notice be. Buyer or Seller, as the case may be, agrees to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to promptly pay any such other independent accounting firm as may be selected jointly by Buyer and Sellers invoice within the ten (10) calendar days following a written request by Buyer after receipt thereof. Notwithstanding the foregoing, if any matters relating to Title Defects, Additional Interests or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP Environmental Defects are finally determined or such jointly selected accounting firmotherwise resolved after the Final Settlement Statement has been finalized and the net adjustment has been paid, the “Referee”). The Referee’s engagement Seller shall be limited to the resolution issue an updated version of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Noticereflects such final determination or resolution, which resolution and as promptly as reasonably practicable thereafter, a net check or invoice shall be in accordance with this Agreement and no other matter relating sent to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the RefereeBuyer or Seller, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, case may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesbe.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days On or before the 120th day after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer in accordance with this Agreement, a statement (the “Final Settlement Statement”) setting forth Sellers’ Seller’s calculation of the final adjustments to be made to the Base Purchase Price in accordance with pursuant to Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price2.1.
(b) Following the delivery Within 20 days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity ▇▇▇▇▇ may deliver to examine Seller a written report containing any changes that ▇▇▇▇▇ proposes be made to the Final Settlement Statement and Sellers’ calculation the reasons for those changes. The parties shall attempt to agree to the amounts due pursuant to such adjustments, including any disputed amounts, no later than 30 days after ▇▇▇▇▇’s receipt of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such reviewFinal Settlement Statement.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections If Seller and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation Final Settlement Statement by the 45th day after ▇▇▇▇▇’s receipt of a Person same, the Parties will refer the Final Settlement Statement and any necessary supporting information to KPMG LLP (or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as substitute arbitratorshall be agreed upon by ▇▇▇▇▇ and Seller in writing) (the “Referral Firm”). The Referral Firm will be directed to review Seller’s Final Settlement Statement and the records relating to the Assets and determine the final adjustments, then other than adjustments for Title Defects which shall be determined in accordance with the Title Defect Mechanism. With respect to any matters under this Agreement to be resolved by the Referral Firm, neither the Referral Firm nor any person employed by the Referral Firm will interpret the provisions of this Agreement unless otherwise agreed by Seller and Buyer. With respect to any matters for which interpretation of this Agreement is required pursuant to settlement of matters under this Section 2.5, and for which Buyer or Sellersand Seller cannot agree on such interpretation, or either such matter shall be submitted to arbitration as provided in Article X and the Referral Firm shall decide all other matters specified in this Section 2.5. The decision of themthe Referral Firm shall be binding on Buyer and Seller, may and the fees and expenses of the Referral Firm shall be borne one-half each by Buyer and Seller. The Referral Firm shall deliver its final calculation of the Purchase Price in writing request to Buyer and Seller as soon as practicable, and the Bankruptcy Court parties shall pay and receive the final adjustment amount, no later than the 5th Business Day following the owing party’s receipt from the Referral Firm of the final Purchase Price determination.
(d) The date that is the later of: (i) the 30th day following ▇▇▇▇▇’s receipt of the Final Settlement Statement; or (ii) the date on which the last of all disputed adjustments, if there are any, is settled, will be the “Final Settlement Date.” No later than five Business Days after the Final Settlement Date, the party owing the greater amount in accordance with the approved Final Settlement Statement must pay the other party the net difference, by wire transfer of immediately available funds. After the Final Settlement Date, there will be no further adjustments pursuant to appoint Sections 2.2, 2.3, 2.4 and 2.5 unless the substitute referee; provided that such Person so appointed shall amount to be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesadjusted exceeds $50,000.00.
(e) The Referee shall determine such items parties will, and will cause their representatives to, cooperate and assist in the preparation of the calculation Final Settlement Statement and the conduct of the Adjusted Purchase Price reviews and audits referred to in this Section 2.5, including but not limited to making available books, records and personnel as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to itreasonably required.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase Agreement
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar the date that is 120 days after the Closing Date, Sellers shall OpCo will in good faith prepare and deliver to Buyer a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ (1) each adjustment or payment that was not finally determined as of Closing, (2) the calculation of such adjustment, and (3) the final adjustments to the Purchase Price in accordance with Cash Consideration (the Cash Consideration subject to such adjustments as finally determined pursuant to this Section 2.0413.1 is the “Final Cash Consideration”). The Final Settlement Statement OpCo shall provide Buyer access to such of OpCo’s records as may be prepared in accordance with this Agreement and reasonably necessary to verify the post-Closing adjustments shown on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement. No later than 20 days after receipt of OpCo’s proposed Final Settlement Statement, Sellers Buyer shall afford deliver to OpCo a written report (with supporting documentation including all relevant invoices with specific references and other information reasonably requested by OpCo) containing any changes that Buyer proposes to make to the opportunity final adjustments to examine the Cash Consideration proposed in the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewdelivered by OpCo. Sellers shall cooperate with Buyer Any changes not so specified in such examination, including responding written report from Buyer shall be deemed waived and OpCo’s determinations with respect to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with all such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement to Buyer, Buyer has that are not delivered to Sellers addressed specifically in such written notice (the “Objection Notice”) of from Buyer shall prevail. Buyer’s objections failure to deliver to OpCo a written report detailing proposed changes to the Final Settlement Statement or Sellers’ calculation of by the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis end of such objections and Buyer’s calculation of the amount(s) for the items objected to that 20-day period shall be deemed an acceptance by Buyer asserts should be used for purposes of the Final Settlement Statement)Statement as submitted by OpCo and shall not be subject to further Dispute, then audit or arbitration. If OpCo disagrees with any changes proposed by Buyer, the Adjusted Purchase Price as set forth in such Final Settlement Statement Parties shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor cooperate in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar any such Dispute no later than 50 days from the date of after OpCo’s delivery of the Objection Noticeproposed Final Settlement Statement. The date upon which such Disputes are resolved or upon which the Final Cash Consideration is established is the “Final Settlement Date.” If the Final Cash Consideration is more than the sum of the Closing Amount and the Deposit, Buyer shall pay OpCo the amount of such difference. If at the end Final Cash Consideration is less than the sum of the Closing Amount and the Deposit, OpCo shall pay to Buyer the amount of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require difference. Any payment by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10a Party under this Section 13.1(a) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution made by wire transfer of disputed amounts set forth in immediately available funds within five days of the Final Settlement Statement that have been identified by Buyer Date. Subject to and except for the rights and obligations of the Parties described in Section 13.1(b), Section 9.3, or Article XIV (with respect to any obligation related to Taxes), the Objection Notice, which resolution shall be adjustments set out in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution final settlement of the disputed amounts. In connection Parties with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition respect to all matters addressed in such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesFinal Settlement Statement.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Earthstone Energy Inc)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar On or before 120 days after Closing (the Closing “Final Settlement Date”), Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the will be prepared by Buyer, based on actual income and expenses and which takes into account all final adjustments made to the Purchase Price, excluding all Title Defect and related title issues subject to pending dispute under Section 10.2, and shows the resulting final Purchase Price in accordance with Section 2.04(the “Final Price”). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with set forth the preparation actual proration of the Closing Statement amounts required by this Agreement. As soon as described in Section 2.04(d)practicable, and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
in any event within thirty (b30) Following the delivery days, after receipt of the Final Settlement Statement, Sellers Whitehorse, on behalf of the Whitehorse Sellers, and Siltstone II, on behalf of the Siltstone Sellers, shall afford return to Buyer the opportunity a joint written report containing any proposed changes to examine the Final Settlement Statement and Sellers’ calculation an explanation of any such changes and the Adjusted Purchase Price, reasons therefor (the “Dispute Notice”). Any changes not so specified in the Dispute Notice shall be deemed waived and Buyer’s determinations with respect to all such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery elements of the Final Settlement Statement that are not addressed specifically in the Dispute Notice shall prevail. If Whitehorse and Siltstone II fail to Buyer, timely deliver a Dispute Notice to Buyer has not delivered containing changes Sellers propose to Sellers written notice (the “Objection Notice”) of Buyer’s objections be made to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected toStatement, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price Statement as set forth in such Final Settlement Statement shall delivered by Buyer will be deemed to be correct and will be final and conclusivebinding on all Parties and not subject to further audit or arbitration. In addition, any of Sellers’ calculations of If the Adjusted Purchase Final Price as set forth in the Final Settlement Statement which are not objected to in is mutually agreed upon by Sellers and Buyer, the Objection Notice Final Settlement Statement and the Final Price shall be deemed final and conclusive.
binding on the Parties (d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith other than with respect to resolve the objections of Buyer set forth in the Objection Notice amounts not accounted for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Noticetherein or settled thereby). If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the Within ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
earlier of (fa) If the expiration of Sellers’ thirty (30)-day review period without delivery of any written report or (b) the date on which the Parties finally determine the Final Price or the Accounting Arbitrator finally determines the disputed items are submitted to the Referee for resolutionmatters, as applicable, (i) each of Buyer and shall pay to Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as amount by which the Referee may request and are available to that Party Final Price exceeds the Closing Cash Payment, or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) Sellers shall pay to Buyer the Referee amount by which the Closing Cash Payment exceeds the Final Price; provided that, if applicable, any amount payable by one Party to the other under this Section 3.5 shall not assign a value first be satisfied out of the portion of the Defect Escrow Amount the owning Party is entitled to at such objection that is greater than time, and then, if applicable, the greatest value for such objection claimed owning Party shall pay to the owed Party any outstanding amounts. All amounts paid pursuant to this Agreement shall be delivered in United States currency by either Party or less than wire transfer of immediately available funds to the smallest value for such objection claimed by either Party; (iii) the determination account specified in writing by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)relevant Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Rosehill Resources Inc.)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days On or before the 90th day after the Closing Date, Sellers Seller shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ forth:
(i) Seller’s calculation of the final adjustments to be made to the Base Purchase Price pursuant to this Section 2, but excluding adjustments for disputed Title Defects to be resolved by the Title Defect Mechanism and disputed adjustments submitted for resolution in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of Dispute Resolution Procedure; and
(ii) the final amounts due for any Title Defects or Environmental Defects cured by Seller after the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Pricenot yet paid.
(b) Following the delivery Within 60 days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity may deliver to examine Seller a notice containing any adjustments that Buyer proposes be made to the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examinationStatement, including responding the documentation and/or facts supporting the adjustments. The Parties shall use commercially reasonable efforts to questions asked by resolve all disputes regarding adjustments no later than ninety (90) days after Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery ’s receipt of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection NoticeFinal Settlement Date”) ); provided, however, the amount of Buyer’s objections any disputed adjustments not resolved by mutual agreement of Buyer and Seller prior to the Final Settlement Statement or Sellers’ calculation Date shall be resolved in accordance with the Dispute Resolution Procedure. No later than three (3) Business Days after the Final Settlement Date, the amount of undisputed additional adjustments shall be paid by the Party owing same in immediately available funds by means of wire transfer to the designated account of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected other Party. The Parties shall, and shall cause their representatives to, cooperate and assist in the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes preparation of the Final Settlement Statement)Statement by providing and making available information, then books, records and personnel as reasonably required to identify and verify the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, amount of any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice proper adjustment to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days after the Closing Date, Sellers shall prepare and deliver to Buyer a statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Asset Purchase Agreement (Basic Energy Services, Inc.)
Final Settlement Statement. (a) As soon as practical andreasonably practicable after the Closing Date, but in any event, no event later than ninety sixty (9060) calendar days after the Closing Date, Sellers Buyer shall prepare and deliver to Buyer Seller a statement final accounting statement, subject to verification by Seller, which sets forth, in reasonable detail, the final calculation and amount of the Adjusted Consideration, including all adjustments to the Base Consideration made in accordance with Section 2.2 and the actual proration of all other amounts required by this Agreement (the “Final Settlement Statement”) setting forth Sellers’ calculation of ). Seller shall reasonably cooperate with Buyer in the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the timely preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine . No later than thirty (30) days after Seller’s receipt of the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by from Buyer, and Sellers Seller shall make available deliver to Buyer written notice setting forth any records under Sellers’ control that are requested changes to the Final Settlement Statement proposed by Seller (the “Dispute Notice”). Buyer in connection with such review.
(c) If, and Seller shall endeavor to agree on the Final Settlement Statement within thirty (30) calendar days following delivery after Buyer’s receipt of Seller’s proposed changes thereto. If Buyer and Seller are unable to agree on any amounts (the “Disputed Amounts”) on the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within during such thirty (30)-day 30) day period, then Sellers Buyer and Buyer Seller shall endeavor in good faith submit all unresolved Claims to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to & Associates, P.C. (or, if such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve act, such other nationally recognized independent public accounting firm as the Referee and shall be agreed upon by Buyer and Sellers are unable Seller in writing) (the “Referral Firm”) to agree upon review such Disputed Amounts in Buyer’s Final Settlement Statement and Seller’s Dispute Notice and the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials records relating to the determination Disputed Amounts and determine the final adjustments with respect thereto. The decision of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and Referral Firm shall be binding on Buyer and conclusive on the Parties Seller, and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) Referral Firm shall be paid borne one-half each by and apportioned between Buyer and Sellers based Seller. The Referral Firm shall deliver its final calculation of the Disputed Amounts in writing to Buyer and Seller as soon as is practicable, and the Party owing any amount for additional adjustments as a result thereof shall pay such amount no later than the tenth (10th) Business Day following the paying Party’s receipt from the Referral Firm of the final adjustments. If the Parties reach agreement on the aggregate dollar amount in dispute and the relative recovery as determined Final Settlement Statement, payment by the Referee or Sellers and Party obligated to do so shall be due on the later of (a) the thirtieth (30th) day after the date on which Seller receives the Final Settlement Statement from Buyer, respectively or (b) five (5) Business Days after such that, by way of example, if the amount in dispute agreement is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)reached.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Biglari Holdings Inc.)
Final Settlement Statement. (a) As soon as practical andreasonably practicable, but in any event, no event later than ninety one hundred and twenty (90120) calendar days Days after the Closing Date, Sellers shall prepare and Seller will deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of the actual adjustments to the Purchase Price pursuant to Section 2.2 with supporting back-up materials. As soon as reasonably practicable, but in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
no event later than thirty (b30) Following the delivery of Days after Buyer receives the Final Settlement Statement, Sellers Buyer may deliver to Seller a written report containing any changes that Buyer proposes to be made to such statement. Such changes shall afford be specified in reasonable detail with reasonable supporting documentation. Any changes not so specified shall be deemed waived, and Seller’s determinations shall prevail. If Buyer fails to timely deliver the opportunity written report to examine Seller containing changes Buyer proposes to be made to the Final Settlement Statement Statement, the statement as delivered by Seller will be deemed to be correct and Sellers’ calculation of will be final and binding on the Adjusted Purchase PriceParties and not subject to further audit or arbitration. As soon as reasonably practicable, but in no event later than fifteen (15) Days after Seller receives Buyer’s written report, the Parties shall meet and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewundertake to agree on the final adjustments to the Final Settlement Statement. Sellers If the Parties fail to agree on the final adjustments within the fifteen (15) Day period, either Party may submit the disputed items to the Accounting Referee for resolution. The Parties shall cooperate with Buyer in such examination, including responding direct the Accounting Referee to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, resolve the disputes within thirty (30) calendar days following delivery Days after having the relevant materials submitted for review. The decision of the Accounting Referee will be binding on and non-appealable by the Parties. The fees and expenses associated with the Accounting Referee will be borne equally by the Parties. Any amounts owed by one Party to the other as a result of the Final Settlement Statement to Buyerwill be paid within twenty (20) Days after the date when the amounts are agreed upon by the Parties or the Parties receive a decision of the Accounting Referee, Buyer has not delivered to Sellers written notice (and the “Objection Notice”) of Buyer’s objections to items included in the Final Settlement Statement will be final and binding between the Parties and not subject to further audit or Sellers’ calculation of arbitration. Notwithstanding anything in this Agreement to the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail contrary, amounts determined by the items objected to, Title Arbitrator or the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement Environmental Arbitrator shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination review by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Accounting Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Mariner Energy Inc)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days On or before the 90th day after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer in accordance with this Agreement, a statement (the “Final Settlement Statement”) setting forth Sellers’ forth:
(i) Seller’s calculation of the final adjustments to be made to the Base Purchase Price pursuant to Section 2.3, other than adjustments for any Title Defects that have been submitted to dispute resolution in accordance with Section 2.04. The Final Settlement Statement shall be prepared the Title Defect Mechanism; and
(ii) the final amounts due for any Title Defects cured by Seller after the Closing, or resolved in accordance with this Agreement and on a basis consistent with Buyer’s favor after the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase PriceClosing.
(b) Following the delivery Within 20 days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity may deliver to examine Seller a written report containing any changes that Buyer proposes be made to the Final Settlement Statement and Sellers’ calculation the reasons for those changes. The parties shall attempt to agree to the amounts due pursuant to such adjustments, including any disputed amounts, no later than 30 days after Buyer’s receipt of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such reviewFinal Settlement Statement.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers Seller and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation Final Settlement Statement by the 45th day after Buyer’s receipt of same, the Parties will refer the Final Settlement Statement and any necessary supporting information to KPMG LLP (or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by Buyer and Seller in writing) (the “Referral Firm”). The Referral Firm will be directed to review Seller’s Final Settlement Statement and the records relating to the Assets and determine the final adjustments, other than adjustments for Title Defects which shall be determined in accordance with the Title Defect Mechanism. With respect to any matters under this Agreement to be resolved by the Referral Firm, neither the Referral Firm nor any person employed by the Referral Firm will interpret the provisions of this Agreement unless otherwise agreed by Seller and Buyer. With respect to any matters for which interpretation of this Agreement is required pursuant to settlement of matters under this Section 2.6, and for which Buyer and Seller cannot agree on such interpretation, such matter shall be submitted to arbitration in a Person similar manner as substitute arbitratorset forth in Exhibit A, then paragraph 8 regarding Title Defect disputes and the Referral Firm shall decide all other matters specified in this Section 2.6. The decision of the Referral Firm shall be binding on Buyer or Sellersand Seller, or either and the fees and expenses of them, may the Referral Firm shall be borne one-half each by Buyer and Seller. The Referral Firm shall deliver its final calculation of the Purchase Price in writing request to Buyer and Seller as soon as practicable, and the Bankruptcy Court to appoint parties shall pay and receive the substitute refereefinal adjustment amount, no later than the 5th Business Day following the owing party’s receipt from the Referral Firm of the final Purchase Price determination.
(d) The date that is the later of: (i) the 30th day following Buyer’s receipt of the Final Settlement Statement; provided that such Person so appointed shall or (ii) the date on which the last of all disputed adjustments, if there are any, is settled, will be a national or regional accounting firm the “Final Settlement Date.” No later than five Business Days after the Final Settlement Date, the Party owing the greater amount in accordance with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesthe approved Final Settlement Statement must pay the other Party the net difference, by wire transfer of immediately available funds.
(e) The Referee shall determine such items parties will, and will cause their representatives to, cooperate and assist in the preparation of the calculation Final Settlement Statement and the conduct of the Adjusted Purchase Price reviews and audits referred to in this Section 2.6, including but not limited to making available books, records and personnel as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to itreasonably required.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Final Settlement Statement. (a) As soon as practical andreasonably practicable after the Closing Date, but in any event, no event later than ninety (90) calendar days after the Closing Date, Sellers Buyer shall prepare and deliver to Buyer Seller: a statement (final accounting statement, subject to verification by Seller, which sets forth, in reasonable detail, the “Final Settlement Statement”) setting forth Sellers’ final calculation and amount of the Adjusted Consideration, including the final calculation of the Working Capital and all other adjustments to the Purchase Price Cash Portion made in accordance with Section 2.042.4, and the actual proration of all other amounts required by this Agreement. The For purposes of this Agreement, such final accounting statement shall be referred to as the "Final Settlement Statement shall be prepared Statement". Seller agrees to use reasonable commercial efforts to assist and cooperate with Buyer in accordance with this Agreement and on a basis consistent with the timely preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery of the Final Settlement Statement, Sellers shall afford including the calculation of the Working Capital. Buyer agrees to give Seller and its authorized representatives full access to such employees, officers, and facilities and such books and records of Buyer and the opportunity Company, to examine the extent within Buyer's control, as is reasonably necessary to permit Seller to verify such calculations and/or review the Final Settlement Statement. No later than thirty (30) days after Seller's receipt of the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by from Buyer, and Sellers Seller shall make available deliver to Buyer written notice setting forth any records under Sellers’ control that are requested changes to the Final Settlement Statement proposed by Seller. Buyer in connection with such review.
(c) If, and Seller shall endeavor to agree on the Final Settlement Statement within thirty (30) calendar days following delivery after Buyer's receipt of Seller's proposed changes thereto. If Buyer and Seller are unable to agree on the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement on or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within before thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolutionBuyer's receipt of Seller's proposed changes thereto, (i) each of then Buyer and Sellers Seller shall furnish to the Referee such workpapers submit all unresolved claims and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value amounts for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made arbitration in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses terms of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)Section 12.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (ABC Funding, Inc)
Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety On or before one hundred twenty (90120) calendar days after the Closing DateClosing, Sellers shall prepare and deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation of will be prepared by Seller and delivered to Buyer, based on actual income and expenses (if known) during the Interim Period and which takes into account all final adjustments made to the Base Purchase Price in accordance with Section 2.04and shows the resulting final Base Purchase Price (the “Final Price”). The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with will set forth the preparation actual proration of the Closing amounts required by this Agreement. As soon as practicable, and in any event within thirty (30) days after receipt of the Final Settlement Statement, Buyer shall return to Seller a written report containing any proposed changes to the Final Settlement Statement and an explanation of any such changes and the reasons for such changes (the “Dispute Notice”). Any changes not so specified in the Dispute Notice will be deemed waived, and Seller’s determinations with respect to all such elements of the Final Settlement Statement that are not addressed specifically in the Dispute Notice will prevail. If Buyer fails to timely deliver a Dispute Notice to Seller containing changes Buyer proposes to be made to the Final Settlement Statement, the Final Settlement Statement as described in delivered by Seller will be deemed to be correct and will be, without limiting Section 2.04(d)13.01, final and shall binding on the Parties and not subject to further audit or arbitration. If the Final Price set forth Sellers’ calculation of in the Adjusted Purchase Final Settlement Statement is agreed upon in writing by Seller and Buyer, the Final Settlement Statement and the Final Price, will be, without limiting Section 13.01, final and binding on the Parties and not subject to further audit or arbitration.
(b) Following Any difference in the Adjusted Purchase Price as paid at Closing pursuant to the Preliminary Settlement Statement and the Final Price shall be paid by the owing Party within ten (10) Business Days of final determination of such owed amounts in accordance with this Section 3.04 to the owed Party:
(i) if the Final Price is more than the Adjusted Purchase Price set forth on the Preliminary Settlement Statement, then Buyer shall pay to Seller by wire transfer of immediately available funds to the account specified in writing by Seller an amount equal to the Settlement Amount; and
(ii) if the Final Price is less than the Adjusted Purchase Price set forth on the Preliminary Settlement Statement, Seller shall pay to Buyer by wire transfer of immediately available funds to the account specified in writing by Buyer an amount equal to the Settlement Amount.
(c) If, after the delivery of the Final Settlement Statement pursuant to the provisions of Section 3.04(a), either Party receives monies (including proceeds of production) belonging to the other Party pursuant to Section 2.03 or otherwise, then such monies shall, within five (5) Business Days after the end of the month in which they were received, be paid over by the receiving Party to the owed Party. Additionally, if after delivery of the Final Settlement Statement, Sellers shall afford Seller pays monies relating to the Assets that are the obligation of Buyer, then Buyer shall, within five (5) Business Days after the opportunity to examine the Final Settlement Statement and Sellers’ calculation end of the Adjusted Purchase Pricemonth in which the applicable invoice and proof of payment of such invoice are received by it, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such reviewreimburse Seller. Sellers Seller shall cooperate with Buyer in such examination, including responding be permitted to questions asked offset any monies owed by Buyer, and Sellers shall make available it to Buyer any records under Sellers’ control that are requested pursuant to this Section 3.04 against amounts owed to it by Buyer in connection with such reviewpursuant to this Section 3.04.
(cd) IfExcept (i) as provided in Section 3.04(c) and (ii) for those matters for which a Party has an indemnity obligation pursuant to Article X or Article XIV, within thirty (30) calendar days following delivery of if the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers is agreed upon by Seller and Buyer shall endeavor in good faith or determined pursuant to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in disputeSection 3.05, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in and the Objection NoticeFinal Price will be final and binding on the Parties, which resolution shall and will be in accordance with this Agreement the final accounting for any and all Property Expenses, and there will be no other matter relating adjustment for, or obligation to pay, any Property Expenses between the Parties following the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesStatement.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Silverbow Resources, Inc.)
Final Settlement Statement. (a) As soon as practical and, in any event, no No later than ninety (90) calendar days 180 Days after the Closing Date, Sellers shall prepare and Seller will deliver to Buyer a final settlement statement (the “Final Settlement Statement”) setting forth Sellers’ calculation the actual amounts of Adjustments and the resulting Adjusted Purchase Price, together with reasonable supporting documentation. As soon as reasonably practicable, but in no event later than 30 Days after Buyer receives the Final Settlement Statement, Buyer may deliver to Seller a written report containing any changes that Buyer proposes to be made to such statement. If Buyer fails to timely deliver the written report to Seller containing changes Buyer proposes to be made to the Final Settlement Statement, the statement as delivered by Seller will be deemed to be correct and will be final and binding on the Parties and not subject to further audit or arbitration. As soon as reasonably practicable, but in no event later than 15 Days after Seller receives Buyer’s written report, the Parties shall meet and undertake to agree on the final adjustments to the Purchase Price in accordance with Section 2.04Final Settlement Statement. If the Parties fail to agree on the final adjustments within the 15-Day period, either Party may submit the disputed items to the Accounting Referee for resolution. The Final Settlement Statement Parties shall direct the Accounting Referee to resolve the disputes as soon as reasonably practicable after having the relevant materials submitted for review, but in no event later than 30 Days after the date the Parties initially submitted the disputed items to the Accounting Referee. The decision of the Accounting Referee will be prepared in accordance with this Agreement binding on and on a basis consistent non- appealable by the Parties. The fees and expenses associated with the preparation of Accounting Referee will be borne equally by the Closing Statement Parties. Any amounts owed by one Party to the other as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(b) Following the delivery a result of the Final Settlement Statement, Sellers shall afford Buyer together with interest on such amount from (and including) the opportunity Closing Date to examine (and excluding) the Final Settlement Statement and Sellers’ calculation date of payment at the Prime Rate, will be paid within five Business Days after the date when the amounts are agreed upon by the Parties or the Parties receive a decision of the Adjusted Purchase PriceAccounting Referee, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth Adjustments included in the Final Settlement Statement which are not objected to in the Objection Notice shall will be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on between the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error not subject to further audit or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)arbitration.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crimson Exploration Inc.)
Final Settlement Statement. (ai) As soon as practical and, in any event, no On or before the day that is the later than of (A) the date that is ninety (90) calendar days after the Closing DateDate or (B) five (5) Business Days after the final determination of all disputed Title Defects and Environmental Defects, Sellers if any, Purchaser shall prepare and deliver to Buyer Seller a draft of the proposed final settlement statement. In addition to the Records and other information provided by Seller to Purchaser in accordance with Section 7.7, Seller shall provide any additional information reasonably requested by Purchaser in order for Purchaser to prepare and deliver to Seller the draft of the proposed final settlement statement. Such proposed final settlement statement will set forth Purchaser’s good-faith estimate of the final Adjusted Purchase Price, reflecting each adjustment made to the Cash Consideration in accordance with this Agreement, which shall be computed in accordance with the terms of this Agreement and include a calculation of the adjustments used to determine such amount and reasonable supporting documentation (the “Final Settlement Statement”) setting forth Sellers’ calculation of the adjustments to the Purchase Price in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price.
(bii) Following Purchaser shall, at Seller’s request, supply reasonable documentation available including but not limited to revenue statements, line itemed operating costs for both capital expenditures and lease operating expenses, accrual statements for costs yet to be paid, to support any credit, charge, receipt, or other item shown in the delivery proposed Final Settlement Statement.
(iii) Within fifteen (15) days after Seller’s receipt of the Final Settlement Statement, Sellers Seller shall afford Buyer the opportunity deliver to examine Purchaser a written report containing any proposed changes to the Final Settlement Statement and Sellers’ calculation an explanation of any such proposed changes and the reasons therefor (an “Accounting Dispute Notice”). Any changes not specified in an Accounting Dispute Notice shall be deemed waived, and Purchaser’s determinations with respect to all such elements of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control Final Settlement Statement that are requested not specifically addressed in an Accounting Dispute Notice shall prevail. If Seller fails to timely deliver an Accounting Dispute Notice to Purchaser containing changes that Seller propose to be made to the Final Settlement Statement, then the Final Settlement Statement, as delivered by Buyer in connection with such reviewPurchaser, will be deemed to be correct and will be final and binding on the Parties and not subject to any further audit or arbitration.
(civ) If, If Seller timely delivers an Accounting Dispute Notice to Purchaser and the Parties are unable to agree upon the Final Settlement Statement within thirty (30) calendar days following delivery after Purchaser’s receipt of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice such Accounting Dispute Notice (the “Objection Request Date”), then each of Seller and Purchaser shall nominate and commit one of its senior officers to meet at a mutually agreed time and place not later than ten days after the Request Date to attempt to resolve any matters set forth in such Accounting Dispute Notice”) . Each of Buyer’s objections Seller and Purchaser shall make available to the Final Settlement Statement or Sellers’ calculation other Party’s senior officers each of their work papers and back-up materials used in preparing their estimates of the Adjusted Purchase Price (which Objection Notice in order and the financial records of Seller related to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusivethereof.
(dv) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith senior officers are unable to resolve the objections of Buyer set forth all unresolved matters in the Objection Accounting Dispute Notice for within a period not to exceed of fifteen (15) calendar days from after the date of delivery of Request Date (any such unresolved matters, an “Accounting Dispute”), either Seller or Purchaser shall have the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in disputeright, then either Buyer or Sellers may require by written notice to the other that Party specifying in reasonable detail the remaining objections in dispute be submitted basis for resolution the Accounting Dispute, to have the DallasAccounting Dispute exclusively and finally resolved by arbitration by submission thereof to Opportune LLP or, Texas office if Opportune LLP is unable or unwilling to perform the arbitration, a nationally recognized independent public accounting firm commonly considered as one of the “Big 4” and reasonably acceptable to Seller and Purchaser (or such other public accounting firm acceptable to Seller and Purchaser) (the “Accounting Referee”). If S▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or and Purchaser are unable to such other independent accounting firm as may mutually agree upon an Accounting Referee, the Accounting Referee shall be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firmDenver, Colorado office of the “Referee”)American Arbitration Association. The Accounting Referee shall serve as the sole arbitrator of any such Accounting Dispute.
(vi) The scope of the Accounting Referee’s engagement shall be limited to the resolution of disputed amounts the items described in the notice of the Accounting Dispute given in accordance with the foregoing and the corresponding calculation of the adjustments pursuant to Section 1.3(a). The Accounting Referee may not award damages or penalties to any Party with respect to any matter.
(vii) Each Party shall bear its own legal fees and other costs of resolving any Accounting Dispute. Seller and Purchaser shall each bear one-half of the fees and expenses of the Accounting Referee.
(viii) The Accounting Referee shall be instructed by the Parties to resolve the Accounting Dispute as soon as reasonably practicable in light of the circumstances but in no event later than thirty (30) days following the submission of the Accounting Dispute to the Accounting Referee.
(ix) To the extent previously provided to the other Party, Purchaser and Seller shall make available to the Accounting Referee at reasonable times and upon reasonable notice at any time during the pendency of any Accounting Dispute submitted thereto each of their work papers and back-up materials used in preparing their calculations of the Adjusted Purchase Price set forth in on the Final Settlement Statement that and any written statements in response thereto, and the financial records of Seller related to the calculation thereof, but expressly excluding any attorney work product or any privileged information or communications.
(x) Purchaser and Seller shall have been identified by Buyer in the Objection Notice, which resolution right to meet jointly with the Accounting Referee during this period and to present their respective positions. The decision and award of the Accounting Referee shall be (A) set forth in accordance with this Agreement writing, (B) binding upon the Parties as an award under the Federal Arbitration Act, and no other matter relating (C) final, conclusive and non-appealable to the maximum extent permitted by Applicable Law. Judgment on the decision and award of the Accounting Referee may be entered in a court of competent jurisdiction and enforced by any Party as a final judgment of such court.
(xi) In determining the proper amount of any adjustment to the Cash Consideration, the Accounting Referee shall not increase the Purchase Price more than the increase proposed by Seller nor decrease the Cash Consideration more than the decrease proposed by Purchaser, as applicable.
(xii) Any amounts owed by a Party under the Final Settlement Statement shall be subject to determination paid by the Referee except Party owing such amount to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
owed Party within ten (e10) The Referee shall determine such items of the calculation of the Adjusted Purchase Price as are disputed within thirty (30) calendar days Business Days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the final determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement owed amounts and shall be binding and conclusive on delivered in United States currency by wire transfer of immediately available funds to the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount account specified in dispute and the relative recovery as determined writing by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)owed Party.
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Final Settlement Statement. (a) As soon as practical and, in any event, no later than ninety (90) calendar days On or before the 120th day after the Closing DateClosing, Sellers Seller shall prepare and deliver to Buyer in accordance with this Agreement, a statement (the “Final Settlement Statement”) setting forth Sellers’ Seller’s calculation of the final adjustments to be made to the Base Purchase Price in accordance with pursuant to Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price2.1.
(b) Following the delivery Within 20 days after receipt of the Final Settlement Statement, Sellers shall afford Buyer the opportunity may deliver to examine Seller a written report containing any changes that Buyer proposes be made to the Final Settlement Statement and Sellers’ calculation the reasons for those changes. The parties shall attempt to agree to the amounts due pursuant to such adjustments, including any disputed amounts, no later than 30 days after Buyer’s receipt of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such reviewFinal Settlement Statement.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations of the Adjusted Purchase Price as set forth in the Final Settlement Statement which are not objected to in the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers Seller and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery of the Objection Notice. If at the end of such fifteen (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (10) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagement. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation Final Settlement Statement by the 45th day after Buyer’s receipt of a Person same, the Parties will refer the Final Settlement Statement and any necessary supporting information to KPMG LLP (or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as substitute arbitratorshall be agreed upon by Buyer and Seller in writing) (the “Referral Firm”). The Referral Firm will be directed to review Seller’s Final Settlement Statement and the records relating to the Assets and determine the final adjustments, then other than adjustments for Title Defects which shall be determined in accordance with the Title Defect Mechanism. With respect to any matters under this Agreement to be resolved by the Referral Firm, neither the Referral Firm nor any person employed by the Referral Firm will interpret the provisions of this Agreement unless otherwise agreed by Seller and Buyer. With respect to any matters for which interpretation of this Agreement is required pursuant to settlement of matters under this Section 2.5, and for which Buyer or Sellersand Seller cannot agree on such interpretation, or either such matter shall be submitted to arbitration as provided in Article X and the Referral Firm shall decide all other matters specified in this Section 2.5. The decision of themthe Referral Firm shall be binding on Buyer and Seller, may and the fees and expenses of the Referral Firm shall be borne one-half each by Buyer and Seller. The Referral Firm shall deliver its final calculation of the Purchase Price in writing request to Buyer and Seller as soon as practicable, and the Bankruptcy Court parties shall pay and receive the final adjustment amount, no later than the 5th Business Day following the owing party’s receipt from the Referral Firm of the final Purchase Price determination.
(d) The date that is the later of: (i) the 30th day following Buyer’s receipt of the Final Settlement Statement; or (ii) the date on which the last of all disputed adjustments, if there are any, is settled, will be the “Final Settlement Date.” No later than five Business Days after the Final Settlement Date, the party owing the greater amount in accordance with the approved Final Settlement Statement must pay the other party the net difference, by wire transfer of immediately available funds. After the Final Settlement Date, there will be no further adjustments pursuant to appoint Sections 2.2, 2.3, 2.4 and 2.5 unless the substitute referee; provided that such Person so appointed shall amount to be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activitiesadjusted exceeds $50,000.00.
(e) The Referee shall determine such items parties will, and will cause their representatives to, cooperate and assist in the preparation of the calculation Final Settlement Statement and the conduct of the Adjusted Purchase Price reviews and audits referred to in this Section 2.5, including but not limited to making available books, records and personnel as are disputed within thirty (30) calendar days after the objections that remain in dispute are submitted to itreasonably required.
(f) If any disputed items are submitted to the Referee for resolution, (i) each of Buyer and Sellers shall furnish to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase Price, as applicable, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees).
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Final Settlement Statement. (ai) As soon as practical andAfter Closing, the Purchase Price shall be adjusted pursuant to a statement in any event, no later than ninety form and substance similar to the Preliminary Settlement Statement (90the “Revised Settlement Statement”) calendar prepared by Seller and delivered by Seller to Buyer on or before sixty (60) days after following the Closing Date, Sellers setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustment and the resulting adjusted Purchase Price (the “Adjusted Purchase Price”). The Revised Settlement Statement shall prepare become final and deliver to binding upon the Parties on the fifteenth (15th) day following receipt thereof by Buyer a statement (the “Final Settlement StatementDate”) setting forth Sellers’ calculation unless Buyer gives written notice of its disagreement (a “Notice of Disagreement”) to Seller prior to such date. Any Notice of Disagreement shall specify in detail the adjustments to dollar amount, nature and basis of any disagreement so asserted. If a Notice of Disagreement is received by Seller in a timely manner, then the Purchase Price Parties shall resolve the dispute evidenced by the Notice of Disagreement in accordance with Section 2.04. The Final Settlement Statement shall be prepared in accordance with this Agreement and on a basis consistent with the preparation of the Closing Statement as described in Section 2.04(d), and shall set forth Sellers’ calculation of the Adjusted Purchase Price16.
(bii) Following If the delivery of the Final Settlement Statement, Sellers shall afford Buyer the opportunity to examine the Final Settlement Statement and Sellers’ calculation of the Adjusted Purchase Price, and such supporting schedules and analyses as are reasonably necessary and appropriate in connection with such review. Sellers shall cooperate with Buyer in such examination, including responding to questions asked by Buyer, and Sellers shall make available to Buyer any records under Sellers’ control that are requested by Buyer in connection with such review.
(c) If, within thirty (30) calendar days following delivery of the Final Settlement Statement to Buyer, Buyer has not delivered to Sellers written notice (the “Objection Notice”) of Buyer’s objections to the Final Settlement Statement or Sellers’ calculation of the Adjusted Purchase Price (which Objection Notice in order to be valid must contain a statement describing in reasonable detail the items objected to, the basis of such objections and Buyer’s calculation of the amount(s) for the items objected to that Buyer asserts should be used for purposes of the Final Settlement Statement), then the Adjusted Purchase Price as set forth in such Final Settlement Statement shall be deemed final and conclusive. In addition, any of Sellers’ calculations amount of the Adjusted Purchase Price as set forth in on the Final Settlement Statement, as such term is defined hereafter, exceeds the amount of the Estimated Purchase Price paid at the Closing, then Buyer shall pay to Seller, the amount by which the Adjusted Purchase Price as set forth on the Final Settlement Statement which are not objected to in exceeds the Objection Notice shall be deemed final and conclusive.
(d) If Buyer delivers the Objection Notice satisfying Section 2.06(c) above, within such thirty (30)-day period, then Sellers and Buyer shall endeavor in good faith to resolve the objections of Buyer set forth in the Objection Notice for a period not to exceed fifteen (15) calendar days from the date of delivery amount of the Objection Notice. If Estimated Purchase Price paid at the end of such fifteen Closing within five (15)-day period there are any objections that remain in dispute, then either Buyer or Sellers may require by written notice to the other that the remaining objections in dispute be submitted for resolution to the Dallas, Texas office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or to such other independent accounting firm as may be selected jointly by Buyer and Sellers within the ten (105) calendar days following a written request by Buyer or Sellers (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such jointly selected accounting firm, the “Referee”). The Referee’s engagement shall be limited to the resolution of disputed amounts set forth in Business Days after the Final Settlement Statement that have been identified by Buyer in the Objection Notice, which resolution shall be in accordance with this Agreement and no other matter relating to the Final Settlement Statement shall be subject to determination by the Referee except to the extent affected by resolution of the disputed amounts. In connection with the engagement of the Referee, each of Buyer and Sellers shall execute any engagement, indemnity and other agreement as the Referee shall require as a condition to such engagementDate. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable or unwilling to serve as the Referee and Buyer and Sellers are unable to agree upon the designation of a Person as substitute arbitrator, then Buyer or Sellers, or either of them, may in writing request the Bankruptcy Court to appoint the substitute referee; provided that such Person so appointed shall be a national or regional accounting firm with no prior material relationships with Buyer or Sellers or their respective Affiliates and shall have experience in auditing companies engaged in oil and gas wellsite service activities.
(e) The Referee shall determine such items of the calculation amount of the Adjusted Purchase Price as are disputed set forth on the Final Settlement Statement is less than the amount of the Estimated Purchase Price paid at the Closing, then Seller shall pay to Buyer the amount by which the Adjusted Purchase Price as set forth on the Final Settlement Statement is less than the amount of the Estimated Purchase Price paid at the Closing within thirty five (305) calendar days Business Days after the objections that remain in dispute are submitted to it.
(f) If any disputed items are submitted to Final Settlement Date. For purposes of this Agreement, the Referee for resolution, term “Final Settlement Statement” shall mean: (i) each of Buyer and Sellers shall furnish the Revised Settlement Statement if such Revised Settlement Statement becomes final pursuant to the Referee such workpapers and other documents and information relating to such disputed items as the Referee may request and are available to that Party Section 7.d(i); or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Referee any materials relating to the determination of the matters in dispute and to discuss such determination with the Referee prior to any written notice of determination hereunder being delivered by the Referee; (ii) upon resolution of any Dispute regarding a Notice of Disagreement, the Referee Revised Settlement Statement reflecting such resolution, which, pursuant to Section 16, the Parties shall not assign a value to such objection that is greater than issue, or cause the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party; (iii) the determination by the Referee of items of the calculation of the Adjusted Purchase PriceIndependent Expert, as applicablesuch term is defined in Section 16, as set forth in a written notice delivered to Sellers and Buyer by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties and shall constitute an arbitral award that is final, binding and unappealable (absent manifest error or fraud) and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee (the “Audit Fees”) shall be paid by and apportioned between Buyer and Sellers based on the aggregate dollar amount in dispute and the relative recovery as determined by the Referee or Sellers and Buyer, respectively (issue following such that, by way of example, if the amount in dispute is $100 and it is resolved $70 in favor of Buyer and $30 in favor of Sellers, then Sellers would bear 70% of the Audit Fees and Buyer would bear 30% of the Audit Fees)resolution.
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